EX-4.2






Exhibit 
4.2




AMENDED AND RESTATED DECLARATION OF TRUST

among

SOUTHWEST BANCORP, INC.,

as Sponsor

U.S. BANK TRUST NATIONAL ASSOCIATION,

as Trustee

and




THE ADMINISTRATORS NAMED HEREIN

Dated as of July 2, 2008




SOUTHWEST CAPITAL TRUST II




 









 




Certain Sections of this Declaration relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:




	 	 	 
	TRUST INDENTURE ACT SECTION	 	DECLARATION SECTION
	§310(a)(1), (2) and (5)
	 	8.7
	(a)(3)
	 	8.9
	(a)(4)
	 	2.7(a)(ii)
	(b)
	 	8.8
	(c)
	 	Not Applicable
	§311(a)
	 	8.13
	(b)
	 	8.13
	(c)
	 	Not Applicable
	§312(a)
	 	5.8
	(b)
	 	5.8
	(c)
	 	5.8
	§313(a)
	 	8.15(a)
	(b)
	 	8.15(a)
	(c)
	 	10.8
	(d)
	 	8.15(c)
	§314(a)(1), (2) and (3)
	 	8.16
	(a)(4)
	 	8.16
	(b)
	 	Not Applicable
	(c)(1)
	 	8.17
	(c)(2)
	 	8.17
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	1.1, 8.17
	(f)
	 	Not Applicable
	§315(a)
	 	8.1(a), 8.3
	(b)
	 	8.2, 10.8
	(c)
	 	8.1(d)
	(d)
	 	8.1,8.3
	(e)
	 	10.1
	§316(a)
	 	Not Applicable
	(a)(1)(A)
	 	8.1(e)
	(a)(1)(B)
	 	5.13(b)
	(a)(2)
	 	Not Applicable
	(b)
	 	5.13
	(c)
	 	6.7
	§317(a)(1)
	 	Not Applicable
	(a)(2)
	 	Not Applicable
	(b)
	 	5.10
	§318(a)
	 	10.10





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.




i









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Article I DEFINED TERMS	 	 
	 	 	Section 1.1 Definitions	 	4
	 
	 	 	 	 	 	 
	Article II CONTINUATION OF THE TRUST	 	 
	 
	 	Section 2.1	 	Name	 	10
	 
	 	Section 2.2	 	Office of the Delaware Trustee; Principal Place of Business	 	11
	 
	 	Section 2.3	 	Initial Contribution of Trust Property; Organizational Expenses	 	11
	 
	 	Section 2.4	 	Issuance of the Preferred Securities	 	11
	 
	 	Section 2.5	 	Issuance of the Common Securities; Subscription and Purchase of Debentures	 	11
	 
	 	Section 2.6	 	Continuation of Trust	 	12
	 
	 	Section 2.7	 	Authorization to Enter into Certain Transactions	 	12
	 
	 	Section 2.8	 	Assets of Trust	 	15
	 
	 	Section 2.9	 	Title to Trust Property	 	15
	 
	 	Section 2.10	 	Liability of the Sponsor for Trust Expenses	 	15
	 
	 	 	 	 	 	 
	Article III PAYMENT ACCOUNT	 	 
	 
	 	Section 3.1	 	Payment Account	 	15
	 
	 	 	 	 	 	 
	Article IV DISTRIBUTIONS; REDEMPTION	 	 
	 
	 	Section 4.1	 	Distributions	 	16
	 
	 	Section 4.2	 	Redemption	 	16
	 
	 	Section 4.3	 	Subordination of Common Securities	 	18
	 
	 	Section 4.4	 	Payment Procedures	 	18
	 
	 	Section 4.5	 	Tax Returns and Reports	 	18
	 
	 	Section 4.6	 	Payment of Taxes, Duties, Etc. of the Trust	 	18
	 
	 	Section 4.7	 	Payments under Indenture or Pursuant to Direct Actions	 	18
	 
	 	 	 	 	 	 
	Article V TRUST SECURITIES CERTIFICATES	 	 
	 
	 	Section 5.1	 	Initial Ownership	 	19
	 
	 	Section 5.2	 	The Trust Securities Certificates	 	19
	 
	 	Section 5.3	 	Execution, Delivery and Authentication of Trust Securities Certificates	 	19
	 
	 	Section 5.4	 	Book-Entry Preferred Securities	 	20
	 
	 	Section 5.5	 	Registration of Transfer and Exchange of Preferred Securities Certificates	 	21
	 
	 	Section 5.6	 	Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates	 	22
	 
	 	Section 5.7	 	Persons Deemed Holders	 	22
	 
	 	Section 5.8	 	Access to List of Holders’ Names and Addresses	 	22
	 
	 	Section 5.9	 	Maintenance of Office or Agency	 	22
	 
	 	Section 5.10	 	Appointment of Paying Agent	 	22
	 
	 	Section 5.11	 	Ownership of Common Securities by Sponsor	 	23
	 
	 	Section 5.12	 	Notices to Depositary	 	23
	 
	 	Section 5.13	 	Rights of Holders; Waivers of Past Defaults	 	23
	 
	 	 	 	 	 	 
	Article VI ACTS OF HOLDERS; MEETINGS; VOTING	 	 
	 
	 	Section 6.1	 	Limitations on Voting Rights	 	25
	 
	 	Section 6.2	 	Notice of Meetings	 	25
	 
	 	Section 6.3	 	Meetings of Holders of the Preferred Securities	 	25
	 
	 	Section 6.4	 	Voting Rights	 	26
	 
	 	Section 6.5	 	Proxies, etc.	 	26
	 
	 	Section 6.6	 	Holder Action by Written Consent	 	26
	 
	 	Section 6.7	 	Record Date for Voting and Other Purposes	 	26






ii









 






	 	 	 	 	 	 	 
	 
	 	Section 6.8	 	Acts of Holders	 	26
	 
	 	Section 6.9	 	Inspection of Records	 	27
	 
	 	 	 	 	 	 
	Article VII REPRESENTATIONS AND WARRANTIES	 	 
	 
	 	Section 7.1	 	Representations and Warranties of the Property Trustee and the Delaware Trustee	 	27
	 
	 	Section 7.2	 	Representations and Warranties of Sponsor	 	28
	Article VIII THE TRUSTEES	 	 
	 
	 	Section 8.1	 	Certain Duties and Responsibilities	 	28
	 
	 	Section 8.2	 	Certain Notices	 	29
	 
	 	Section 8.3	 	Certain Rights of Property Trustee	 	29
	 
	 	Section 8.4	 	Not Responsible for Recitals or Issuance of Securities	 	31
	 
	 	Section 8.5	 	May Hold Securities	 	31
	 
	 	Section 8.6	 	Compensation; Indemnity; Fees	 	31
	 
	 	Section 8.7	 	Corporate Property Trustee Required; Eligibility of Trustees	 	32
	 
	 	Section 8.8	 	Conflicting Interests	 	32
	 
	 	Section 8.9	 	Co-Trustees and Separate Trustee	 	32
	 
	 	Section 8.10	 	Resignation and Removal; Appointment of Successor	 	33
	 
	 	Section 8.11	 	Acceptance of Appointment by Successor	 	34
	 
	 	Section 8.12	 	Merger, Conversion, Consolidation or Succession to Business	 	25
	 
	 	Section 8.13	 	Preferential Collection of Claims Against Sponsor or Trust	 	35
	 
	 	Section 8.14	 	Property Trustee May File Proofs of Claim	 	35
	 
	 	Section 8.15	 	Reports by Property Trustee	 	35
	 
	 	Section 8.16	 	Reports to the Property Trustee	 	36
	 
	 	Section 8.17	 	Evidence of Compliance with Conditions Precedent	 	36
	 
	 	Section 8.18	 	Number of Trustees	 	36
	 
	 	Section 8.19	 	Delegation of Power	 	36
	 
	 	Section 8.20	 	Appointment of Administrators	 	36
	 
	 	 	 	 	 	 
	Article IX TERMINATION, LIQUIDATION AND MERGER	 	 
	 
	 	Section 9.1	 	Dissolution Upon Expiration Date	 	37
	 
	 	Section 9.2	 	Early Dissolution	 	37
	 
	 	Section 9.3	 	Termination	 	37
	 
	 	Section 9.4	 	Liquidation	 	37
	 
	 	Section 9.5	 	Mergers, Consolidations, Amalgamations or Replacements of Trust	 	38
	 
	 	 	 	 	 	 
	Article X MISCELLANEOUS PROVISIONS	 	 
	 
	 	Section 10.1	 	Limitation of Rights of Holders	 	39
	 
	 	Section 10.2	 	Amendment	 	39
	 
	 	Section 10.3	 	Separability	 	40
	 
	 	Section 10.4	 	Governing Law	 	40
	 
	 	Section 10.5	 	Payments Due on Non-Business Day	 	40
	 
	 	Section 10.6	 	Successors	 	40
	 
	 	Section 10.7	 	Headings	 	40
	 
	 	Section 10.8	 	Reports, Notices and Demands	 	41
	 
	 	Section 10.9	 	Agreement Not to Petition	 	41
	 
	 	Section 10.10	 	Trust Indenture Act; Conflict with Trust Indenture Act	 	41
	 
	 	Section 10.11	 	Acceptance of Terms of Declaration, Guarantee Agreement and Indenture	 	41
	 
	 	Section 10.12	 	Counterparts	 	42
	 
	 	Section 10.13	 	Exchange Act Obligations	 	42
	 
	 	 	 	 	 	 
	 
	 	Exhibit A	 	Form  of Common Securities Certificate	 	44
	 
	 	Exhibit B	 	Form of Preferred Securities Certificate	 	46






iii









 






     AMENDED AND RESTATED DECLARATION OF TRUST, dated as of July 2, 2008, among SOUTHWEST BANCORP,
INC., an Oklahoma corporation (including any successors or assigns, the “Sponsor”), U.S. BANK TRUST
NATIONAL ASSOCIATION, as property trustee (in such capacity, the “Property Trustee”), U.S. BANK
TRUST NATIONAL ASSOCIATION, as Delaware trustee, Rick J. Green, an individual, Kerby Crowell, an
individual, and Laura Bright, an individual (each an “Administrator” and collectively the
“Administrators”) (the Property Trustee, the Delaware Trustee and the Administrators being referred
to collectively as the “Trustees” and individually as “Trustee”), and the several Holders, as
hereinafter defined.



W I T N E S S E T H




     WHEREAS, the Sponsor and the Property Trustee have heretofore duly declared and established a
statutory trust under the name “Southwest Capital Trust II” pursuant to the Delaware Statutory
Trust Act by entering into the Declaration, dated as of May 29, 2008 (the “Original Declaration”),
and by the execution and filing by the Property Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, filed on May 29, 2008;



     WHEREAS, the parties hereto desire to amend and restate the Original Declaration in its
entirety as set forth herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Sponsor, (ii) the issuance and sale of the Preferred Securities by
the Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust from the
Sponsor of all of the right, title and interest in the Debentures; and (iv) the appointment of the
Trustees;



     NOW THEREFORE, in consideration of the premises, the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the
Holders, hereby amends and restates the Original Declaration in its entirety and agrees as follows:



ARTICLE I

DEFINED TERMS




     Section 1.1 Definitions. For all purposes of this Declaration, except as otherwise
expressly provided or unless the context otherwise requires:



     (a) capitalized terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;



     (b) a term defined anywhere in this Declaration has the same meaning throughout;



     (c) all references to “the Declaration” or “this Declaration” are to this Declaration as
modified, supplemented or amended from time to time;



     (d) a reference to the singular includes the plural and vice versa.



     (e) unless the context otherwise requires, any reference to an “Article”, a “Section” or an
“Exhibit” refers to an Article, a Section or an Exhibit, as the case may be, of or to this
Declaration;



     (f) the words “hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Declaration as a whole and not to any particular Article, Section or other
subdivision; and



     (g) all capitalized terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein.



     “Act” has the meaning specified in Section 6.8.



     “Additional Amounts” has the meaning set forth in Section 3.06 of the Indenture.



     “Additional Interest” has the meaning set forth in Section 2.11 of the Indenture.



4









 





     “Administrator” means each of the Persons appointed in accordance with Section 8.20 solely in
such Person’s capacity as Administrator of the Trust and not in such Person’s individual capacity,
or any successor Administrator appointed as herein provided.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a
Book-Entry Preferred Security, the rules and procedures of the Depositary for such Book-Entry
Preferred Security, in each case to the extent applicable to such transaction and as in effect from
time to time.



     “Bankruptcy Event” means, with respect to any Person:



     (a) the entry of a decree or order by a court having jurisdiction in the premises judging such
Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such Person under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or
of any substantial part of its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a period of 60
consecutive days; or



     (b) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent,
or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due or its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of
any such action.



     “Bankruptcy Law” has the meaning specified in the Indenture.



     “Board of Directors” means either the board of directors of the Sponsor or any committee of
that board duly authorized to act hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Sponsor to have been duly adopted by the Board of Directors, or such committee of
the Board of Directors or officers of the Sponsor to which authority to act on behalf of the Board
of Directors has been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustees.



     “Book-Entry Preferred Securities Certificate” means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.



     “Book-Entry Preferred Security” means a Preferred Security, the ownership and transfers of
which shall be made through book entries by a Depositary as described in Section 5.4.



     “Business Day” means any day other than a Saturday, Sunday, or any other day on which banking
institutions and trust companies in The City of New York, New York, Wilmington, Delaware or
Stillwater Oklahoma, are permitted or required by any applicable law to close.



     “Certificate Depository Agreement” means the agreement among the Trust, the Sponsor and DTC,
as the initial Depositary, dated as of the Closing Date.



5









 





     “Closing Date” means the date of execution and delivery of this Declaration.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Common Securities Certificate” means a certificate evidencing ownership of Common Securities,
substantially in the form attached as Exhibit A.



     “Common Security” means a common undivided beneficial interest in assets of the Trust, having
a Liquidation Amount of $25.00 and having the rights provided therefor in this Declaration,
including the right to receive Distributions and a Liquidation Distribution to the extent provided
herein.



     “Corporate Trust Office” when used with respect to any Trustee who is not a natural person,
the principal office of such Trustee at which at any particular time its corporate trust business
is administered.



     “Debenture Event of Default” means any “Event of Default” specified in Section 5.01 of the
Indenture.



     “Debenture Redemption Date” means, with respect to any Debentures to be redeemed under the
Indenture, the date fixed for redemption of such Debentures under the Indenture.



     “Debentures” means the Sponsor’s 10.50% Junior Subordinated Notes due 2038, issued pursuant to
the Indenture.



     “Debenture Trustee” means the Person identified as the “Trustee” in the Indenture, solely in
its capacity as Trustee pursuant to the Indenture and not in its individual capacity, or its
successor in interest in such capacity, or any successor Trustee appointed as provided in the
Indenture.



     “Declaration” means this Amended and Restated Declaration, as the same may be modified,
amended or supplemented in accordance with the applicable provisions hereof, including (i) all
exhibits, and (ii) for all purposes of this Declaration and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Declaration and any such modification, amendment or supplement, respectively.



     “Definitive Preferred Securities Certificates” means either or both (as the context requires)
of (i) Preferred Securities Certificates issued as Book-Entry Preferred Securities Certificates as
provided in Section 5.2 or 5.4, and (ii) Preferred Securities Certificates issued in certificated,
fully registered form as provided in Section 5.2, 5.4 or 5.5.



     “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§ 3801 et seq., as it may be amended from time to time.



     “Delaware Trustee” means the Person identified as the “Delaware Trustee” in this Declaration,
solely in its capacity as Delaware Trustee of the Trust and not in its individual capacity, or its
successor in interest in such capacity, or any successor Delaware Trustee appointed as herein
provided.



     “Depositary” means an organization registered as a “Depositary” pursuant to Section 17A of the
Exchange Act. DTC will be the initial Depositary.



     “Depositary Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time a Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.



     “Distribution Date” has the meaning specified in Section 4.1(a).



6









 





     “Distributions” means amounts payable in respect of the Trust Securities as provided in
Section 4.1.



     “DTC” means The Depository Trust Company.



     “Early Dissolution Event” has the meaning specified in Section 9.2.



     “Event of Default” means any one of the following events (whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):



     (a) the occurrence of a Debenture Event of Default; or



     (b) default by the Trust in the payment of any Distribution when it becomes due and payable,
and continuation of such default for a period of 30 days; or



     (c) default by the Trust in the payment of any Redemption Price of any Trust Security when it
becomes due and payable; or



     (d) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Trustees in this Declaration (other than those specified in clause (b) or (c)
above) and continuation of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Trustees and to the Sponsor by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or



     (e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor
Property Trustee has not been appointed within 90 days thereof.



     “Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto,
in each case as amended from time to time.



     “Expense Agreement” means the Agreement as to Expenses and Liabilities, dated as of the
Closing Date, between the Sponsor and the Trust, substantially in the form attached as Exhibit B ,
as amended from time to time.



     “Expiration Date” has the meaning specified in Section 9.1.



     “Federal Reserve” means the Board of Governors of the Federal Reserve System, as from time to
time constituted, or if at any time after the execution of this Declaration the Federal Reserve is
not existing and performing the duties now assigned to it, then the bodies performing such duties
at such time, or the Federal Reserve Bank of Chicago, or any successor Federal reserve bank having
primary jurisdiction over the Sponsor.



     “Guarantee Agreement” means the Guarantee Agreement executed and delivered by the Sponsor and
U.S. Bank National Association, as guarantee trustee, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the holders of the Preferred Securities, as
amended from time to time.



     “Holder” means a Person in whose name a Trust Security or Trust Securities are registered in
the Securities Register; any such Person shall be a beneficial owner within the meaning of the
Delaware Statutory Trust Act.



     “Indenture” means the Junior Subordinated Indenture, dated as of the date hereof, between the
Sponsor and the Debenture Trustee, as trustee, as may be amended or supplemented from time to time.



     “Investment Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.



7









 





     “Lien” means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership
interest, hypothecation, assignment, security interest or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever.



     “Like Amount” means (a) with respect to a redemption of any Trust Securities, Trust Securities
having a Liquidation Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such
Debentures are distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities in respect of which such distribution is made.



     “Liquidation Amount” means the stated amount of $25.00 per Trust Security.



     “Liquidation Date” means the date of the dissolution of the Trust pursuant to Section 9.4.



     “Liquidation Distribution” has the meaning specified in Section 9.4(d).



     “Majority in Liquidation Amount of the Preferred Securities” or “Majority in Liquidation
Amount of the Common Securities” means, except as provided by the Trust Indenture Act, Preferred
Securities or Common Securities, as the case may be, representing more than 50% of the aggregate
Liquidation Amount of all then Outstanding Preferred Securities or Common Securities, as the case
may be.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
the Chairman of the Executive Committee of the Board of Directors, the Chief Executive Officer, the
President, the Chief Operating Officer, a Vice Chairman or a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary, an Assistant Secretary or the Comptroller of the Company of the
Sponsor, and delivered to the Trustees. Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Declaration shall include:



     (a) a statement by each officer signing the Officers’ Certificate that such officer has read
the covenant or condition and the definitions relating thereto;



     (b) a brief statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;



     (c) a statement that such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable each officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and



     (d) a statement as to whether, in the opinion of each officer, such condition or covenant has
been complied with.



     “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be counsel
to the Trust, any Trustee or the Sponsor or may be other counsel reasonably satisfactory to the
Property Trustee.



     “Option” has the meaning specified in the Underwriting Agreement.



     “Option Closing Date” has the meaning specified in the Underwriting Agreement.



     “Optional Redemption Price” means, with respect to any Trust Security, the Liquidation Amount
of such Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the
related amount of the premium, if any, paid by the Sponsor upon the concurrent redemption of a Like
Amount of Debentures.



     “Original Declaration” has the meaning specified in the recitals to this Declaration.



8









 





     “Outstanding”, when used with respect to Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under this Declaration,
except:



     (a) Trust Securities theretofore cancelled by the Property Trustee or delivered to the
Property Trustee for cancellation;



     (b) Trust Securities for which payment or redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any Paying Agent; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Declaration; and



     (c) Trust Securities that have been paid or in exchange for or in lieu of which other Trust
Securities have been executed and delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.11;



provided, however, that in determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Preferred Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Preferred Securities owned by the Sponsor, any Trustee or any
Affiliate of the Sponsor or of any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded, and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred Securities are owned by the Sponsor, one or
more of the Trustees and/or any such Affiliate. Preferred Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Administrators the pledgee’s right so to act with respect to such Preferred Securities and
that the pledgee is not the Sponsor or any Affiliate of the Sponsor.



     “Owner” means each Person who is the beneficial owner of Book-Entry Preferred Securities as
reflected in the records of the Depositary or, if a Depositary Participant is not the Owner, then
as reflected in the records of a Person maintaining an account with such Depositary (directly or
indirectly, in accordance with the rules of such Depositary).



     “Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 5.10
and shall initially be U.S. Bank Trust National Association.



     “Payment Account” means a segregated non-interest-bearing corporate trust account maintained
by or on behalf of the Property Trustee for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and 4.2.



     “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any
other entity of whatever nature.



     “Preferred Securities Certificate” means a certificate evidencing ownership of Preferred
Securities, substantially in the form attached as Exhibit B.



     “Preferred Security” means a preferred undivided beneficial interest in the assets of the
Trust, having a Liquidation Amount of $25.00 and having the rights provided therefor in this
Declaration, including the right to receive Distributions and a Liquidation Distribution to the
extent provided herein.



     “Property Trustee” means the Person identified as the “Trustee” in the preamble to this
Declaration, solely in its capacity as Property Trustee of the Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor Property Trustee
appointed as herein provided. In the event of any amendment or supplement to this Declaration to
provide for a separate Property Trustee and Delaware Trustee, then the Property trustee shall mean
the Person identified therein as “Property Trustee, or any solely in its capacity as Property
Trustee of the Trust and not in its individual capacity, or its successor in interest in such
capacity, or any successor Property Trustee appointed as herein provided.



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     “Redemption Date” means, with respect to any Trust Security to be redeemed, the date fixed for
such redemption by or pursuant to this Declaration; provided that each Debenture Redemption Date
and the stated maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.



     “Redemption Price” means the Optional Redemption Price or the Special Redemption Price, as
applicable.



     “Relevant Trustee” has the meaning specified in Section 8.10.



     “Responsible Officer” means, with respect to the Property Trustee, any officer of the Property
Trustee with direct responsibility for the administration of the Indenture, including any
vice-president, any assistant vice-president, any secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with the particular
subject.



     “Securities Act” means the Securities Act of 1933, and any successor statute thereto, in each
case as amended from time to time.



     “Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 5.5.



     “Special Redemption Price” means, with respect to the redemption of any Debenture following a
Special Event, an amount in cash equal to 100% of the principal amount of Debentures to be redeemed
plus unpaid interest accrued thereon to the Special Redemption Date.



     “Sponsor” has the meaning specified in the preamble to this Declaration.



     “Trust” means the Delaware statutory trust heretofore known as “Southwest Capital Trust II,”
which was formed on May 29, 2008 under the Delaware Statutory Trust Act pursuant to the Original
Declaration and the filing of the Certificate of Trust, and continued pursuant to this Declaration
under the name “Southwest Capital Trust II”.



     “Trustees” has the meaning specified in the preamble to this Declaration.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this Guarantee Agreement was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.



     “Trust Property” means (a) the Debentures, (b) any cash on deposit in, or owing to, the
Payment Account, and (c) all proceeds and rights in respect of the foregoing and any other property
and assets for the time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Declaration.



     “Trust Securities Certificate” means any one of the Common Securities Certificates or the
Preferred Securities Certificates.



     “Trust Security” means the Common Securities or the Preferred Securities.



     “Underwriting Agreement” means the Underwriting Agreement, dated as of June 26, 2008, among
the Trust, the Sponsor and the Underwriters named therein, as the same may be amended from time to
time.



ARTICLE II

CONTINUATION OF THE TRUST




     Section 2.1 Name. The trust established under the Original Declaration under the name
“Southwest Capital Trust II” and continued hereby shall continue to be known as “Southwest Capital
Trust II”, as such name may be modified from time to time by the Administrators following written
notice to the Holders of Trust Securities and the other Trustees. The Trustees may conduct the
business of the Trust, make and execute contracts and other



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instruments on behalf of the Trust and sue and be sued in such name or in their own names together
with an indication of their capacities as trustees.




     Section 2.2 Office of the Property Trustee; Principal Place of Business. The address
of the Property Trustee in the State of Delaware is 300 East Delaware Avenue, 9th Floor,
Wilmington, Delaware 19801, or such other address in the State of Delaware as the Property Trustee
may designate by written notice to the Holders, the Sponsor, and the Administrators. The principal
executive office of the Trust is c/o Southwest Bancorp, Inc., 608 South Main Street, Stillwater,
Oklahoma, 74074.



     Section 2.3 Initial Contribution of Trust Property; Organizational Expenses. The
Sponsor deposited the sum of $1.00 in connection with the Original Declaration, which constituted
the initial Trust Property. The Sponsor shall pay organizational expenses of the Trust as they
arise and shall, upon request of any Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Sponsor shall make no claim upon the Trust Property for the payment of
such expenses.



     Section 2.4 Issuance of the Preferred Securities. The Sponsor, both on its own behalf
and on behalf of the Trust pursuant to the Original Declaration, executed and delivered the
Underwriting Agreement, which action is hereby authorized, approved, ratified and confirmed in all
respects. Contemporaneously with the execution and delivery of this Declaration, an Administrator,
on behalf of the Trust, shall manually execute in accordance with Sections 5.2, 5.3 and 8.9(a) and
deliver to the Property Trustee for authentication and the Property Trustee shall deliver to the
Underwriters, a Preferred Securities Certificate, registered in the name as set forth in Section
5.2(b), evidencing an aggregate of 1,200,000 Preferred Securities having an aggregate Liquidation
Amount of $30,000,000.00, against receipt of the aggregate purchase price of such Preferred
Securities of $30,000,000.00, by the Property Trustee. If the underwriters exercise their
over-allotment option and there is an Option Closing Date, then an Administrator, on behalf of the
Trust, shall execute in accordance with Section 5.2 and deliver in accordance with the Underwriting
Agreement, Preferred Securities Certificates, registered in the name of the Persons entitled
thereto in an aggregate amount of up to 180,000 Preferred Securities having an aggregate
Liquidation Amount of up to $4,500,000.00 against receipt of the aggregate purchase price of such
Preferred Securities of up to $4,500,000.00, which amount such Administrator shall promptly deliver
to the Property Trustee.



     Section 2.5 Issuance of the Common Securities; Subscription and Purchase of
Debentures.



     (a) Contemporaneously with the execution and delivery of this Declaration, an Administrator,
on behalf of the Trust, shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the
Property Trustee shall deliver to the Sponsor, Common Securities Certificates, registered in the
name of the Sponsor, evidencing an aggregate of 37,200 Common Securities having an aggregate
Liquidation Amount of $930,000.00, against receipt of the aggregate purchase price of such Common
Securities of $930,000.00, by the Property Trustee. Contemporaneously therewith, an Administrator,
on behalf of the Trust, shall subscribe for and purchase from the Sponsor the Debentures,
registered in the name of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to $930,000, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Sponsor the sum of
$30,930,000.00 (being the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section 2.5).



     (b) If the underwriters exercise the Option and there is an Option Closing Date, then an
Administrator, on behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to
the Sponsor, Common Securities Certificates, registered in the name of the Sponsor, in an
additional aggregate amount of Common Securities having an aggregate Liquidation Amount of up to
$140,000.00 against payment by the Sponsor of such amount. Contemporaneously therewith, an
Administrator, on behalf of the Trust, shall subscribe to and purchase from the Sponsor, additional
Debentures, registered in the name of the Trust and having an aggregate principal amount of up to
$4,640,000.00, and, in satisfaction of the purchase price of such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Sponsor up to $4,640,000.00,such aggregate amount to
be equal to the sum of the amounts received from the Sponsor pursuant to Section 2.5(b) and from
one of the Administrators pursuant to the last sentence of Section 2.4.



     Section 2.6 Continuation of Trust. The exclusive purposes and functions of the Trust
are (a) to issue and sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those



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activities necessary or incidental thereto. The Sponsor hereby appoints the Property Trustee, the
Delaware Trustee and the Administrators as trustees of the Trust, to have all the rights, powers
and duties to the extent set forth herein, and the respective Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of the Trust and the Holders.
The Administrators shall have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrators set forth herein. The Delaware
Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Statutory Trust Act and for taking such actions as
are required to be taken by a Delaware trustee under the Delaware Statutory Trust Act. The Property
Trustee shall, until such time as a separate Delaware Trustee may be appointed, shall maintain its
principal office in the State of Delaware, and otherwise enable the Trust to fulfill the
requirements of Section 3807 of the Delaware Statutory Trust Act and shall take such actions as are
required to be taken by a Delaware trustee under the Delaware Statutory Trust Act.




     Section 2.7 Authorization to Enter into Certain Transactions. 



     (a) The Trustees shall conduct the affairs of the Trust in accordance with the terms of this
Declaration. Subject to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees, as the case may
be, under this Declaration, and to perform all acts in furtherance thereof, including, the
following:



     (i) As among the Trustees, each Administrator, acting singly or collectively, shall have the
power and authority to act on behalf of the Trust with respect to the following matters:



     (A) the preparation and filing by the Trust with the Commission and the execution on behalf of
the Trust of a registration statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto and the taking of any action necessary or desirable to
sell the Preferred Securities in a transaction or a series of transactions pursuant thereto;



     (B) the issuance and sale of the Trust Securities;



     (C) causing the Trust to perform the transactions contemplated by and its obligations under
the Underwriting Agreement and causing the Trust to enter into, and to execute, deliver and perform
the Certificate Depository Agreement and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;



     (D) assisting in the registration of the Preferred Securities under the Securities Act and
under applicable state securities or blue sky laws and the qualification of this Declaration as a
trust indenture under the Trust Indenture Act;



     (E) assisting in the listing of the Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Sponsor, with the registration of the Preferred Securities
under the Exchange Act and with the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;



     (F) assisting in the sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Debentures to the Holders in accordance with this
Declaration;



     (G) the consent to the appointment of a Paying Agent, authenticating agent and Securities
Registrar in accordance with this Declaration (which consent shall not be unreasonably withheld);



     (H) the execution of the Trust Securities on behalf of the Trust in accordance with this
Declaration;



     (I) the execution and delivery of closing certificates, if any, pursuant to the Underwriting
Agreement and application for a taxpayer identification number for the Trust;



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     (J) to the extent provided herein, the winding-up of the affairs of and the liquidation of the
Trust and the preparation and filing of the certificate of cancellation with the Secretary of State
of the State of Delaware;



     (K) unless otherwise required by the Delaware Statutory Trust Act or the Trust Indenture Act,
executing on behalf of the Trust (either acting alone or together with the other Administrator) any
documents that the Administrators have the power to execute pursuant to this Declaration;



     (L) assign in the listing of the Preferred Securities upon The Nasdaq Global Select Market or
such securities exchange or exchanges as shall be determined by the Sponsor, the registration of
Preferred Securities under the Exchange Act, the compliance with the listing requirements of The
Nasdaq Global Select Market or the applicable securities exchanges and the preparation and filing
of all periodic and other reports and other documents pursuant to the foregoing; and



     (M) the taking of any action incidental to the foregoing as the Trustees may from time to time
determine to be necessary or advisable to give effect to the terms of this Declaration.



     (ii) As among the Trustees, the Property Trustee shall have the power, duty and authority to
act on behalf of the Trust with respect to the following matters:



     (A) the establishment of the Payment Account;



     (B) the receipt of the Debentures;



     (C) the collection of interest, principal and any other payments made in respect of the
Debentures and the
holding of such amounts in the Payment Account;




     (D) the distribution through the Paying Agent of amounts distributable to the Holders in
respect of the Trust Securities;



     (E) the exercise of all of the rights, powers and privileges of a holder of the Debentures;



     (F) the sending of notices of default and other information regarding the Trust Securities and
the
Debentures to the Holders in accordance with this Declaration;




     (G) the distribution of the Trust Property in accordance with the terms of this Declaration;



     (H) to the extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust;



     (I) performing the duties of the Property Trustee set forth in this Declaration;



     (J) after an Event of Default (other than under paragraph (b), (c), (d) or (e) of the
definition of such term if such Event of Default is by or with respect to the Property Trustee) the
taking of any action incidental to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of this Declaration and protect and
conserve the Trust Property for the benefit of the Holders (without consideration of the effect of
any such action on any particular Holder);



     (K) registering transfers of the Trust Securities in accordance with this Declaration; and



     (L) any of the duties, liabilities, powers or the authority of the Administrators set forth
herein; and in the event of a conflict between the action of the Administrators and the action of
the Property Trustee, the action of the Property Trustee shall prevail.



     (b) So long as this Declaration remains in effect, the Trust (or the Trustees acting on behalf
of the Trust) shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by



13









 




this Declaration, (ii) sell, assign, transfer, exchange, mortgage, pledge, set off or otherwise
dispose of any of the Trust Property or interests therein, including to Holders, except as
expressly provided herein, (iii) take any action that would reasonably be expected to cause the
Trust to be classified as an association taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt, or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Administrators shall defend all claims
and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Holders in their capacity as Holders.




     (c) In connection with the issue and sale of the Preferred Securities, the Sponsor shall have
the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust,
the following (and any actions taken by the Sponsor in furtherance of the following prior to the
date of this Declaration are hereby ratified and confirmed in all respects):



     (i) the preparation and filing by the Trust with the Commission and the execution on behalf of
the Trust of a registration statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto and the taking of any action necessary or desirable to
sell the Preferred Securities in a transaction or a series of transactions pursuant thereto;



     (ii) the determination of the States in which to take appropriate action to qualify or
register for sale all or part of the Preferred Securities the Debentures and the Guarantee and the
taking of any and all such acts, other than actions that must be taken by or on behalf of the
Trust, and advice to the Trust of actions that must be taken by or on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and filed by the Trust or on
behalf of the Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the sale of the Preferred Securities;



     (iii) the preparation for filing by the Trust and execution on behalf of the Trust of an
application to the Nasdaq Global Select Market or any other national securities exchange for
listing upon notice of issuance of any Preferred Securities and to file or cause an Administrator
to file thereafter with each exchange or organization such notifications and documents as may be
necessary from time to time;



     (iv) the preparation for filing by the Trust with the Commission and the execution on behalf
of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(a) or Section 12(b) of the Exchange Act, including any amendments
thereto;



     (v) the preparation and execution of a Letter of Representation to the Depository Trust
Company on behalf of the Trust;



     (vi) the negotiation of the terms of, and the execution and delivery of, the Underwriting
Agreement providing for the sale of the Preferred Securities; and



     (vii) the taking of any other actions necessary or desirable to carry out any of the foregoing
activities.



     (d) Notwithstanding anything herein to the contrary, the Trustees are authorized and directed
to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed
to be an “investment company” required to be registered under the Investment Company Act, and will
not be taxable as a corporation or classified as other than a grantor trust for United States
Federal income tax purposes and so that the Debentures will be treated as indebtedness of the
Sponsor for United States Federal income tax purposes. In this connection, subject to Section 10.2,
each Administrator, the Property Trustee and the Holders of at least a Majority in Liquidation
Amount of the Common Securities are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust, or this Declaration, that such Administrator, the Property Trustee
or Holders of Common Securities determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material respect the interests of
the Holders of the Outstanding Preferred Securities. In no event shall the Trustees be liable to
the Trust or the Holders for any failure to comply with this section or Section 2.7(b) (iii) that
results from a change in law or regulation or in the interpretation by a governmental authority
thereof.



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     Section 2.8 Assets of Trust. The assets of the Trust shall consist of the Trust
Property.



     Section 2.9 Title to Trust Property. Legal title to all Trust Property shall be vested
at all times in the Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee in trust for the benefit of the Trust and the Holders in accordance with
this Declaration.



     Section 2.10 Liability of the Sponsor for Trust Expenses. As permitted under the
Delaware Statutory Trust Act, the Sponsor, as Holder of the Common Securities, and as Debenture
Issuer, shall be liable for the debts and obligations of the Trust, and shall:



     (a) pay all reasonable costs and expenses owing to the Debenture Trustee pursuant to Section
6.06 of the Indenture;



     (b) be responsible for and shall pay all debts and obligations (other than with respect to the
Trust Securities) and all costs and expenses of the Trust, the offering, sale and issuance of the
Trust Securities (including fees to the Underwriters in connection therewith), the costs and
expenses (including reasonable counsel fees and expenses) of the Property Trustee, the Delaware
Trustee and the Administrators, the costs and expenses relating to the operation of the Trust,
including, without limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or accounting equipment,
Paying Agents, Registrars, Transfer Agents, duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by the Property Trustee of the
rights of the Holders);



     (c) pay any and all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the
Trust; and



     (d) The Sponsor’s obligations under this Section 2.10 shall be for the benefit of, and shall
be enforceable by, any Person to whom such debts, obligations, costs, expenses and taxes are owed
(a “Creditor”) whether or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsor’s obligations under this Section 2.10 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Sponsor. The Sponsor agrees to
execute such additional agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 2.10.



ARTICLE III

PAYMENT ACCOUNT




     Section 3.1 Payment Account. 



     (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account
with the Paying Agent. The Property Trustee and its agents shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as
herein provided, including (and subject to) any priority of payments provided for herein.



     (b) The Property Trustee shall deposit (or cause to be deposited) in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.



15









 





ARTICLE IV

DISTRIBUTIONS; REDEMPTION




     Section 4.1 Distributions.



     (a) The Trust Securities represent undivided beneficial interests in the Trust Property, and
Distributions (including of Additional Amounts) will be made on the Trust Securities at the rate
and on the dates that payments of interest (including of Additional Interest, as defined in the
Indenture) are made on the Debentures. Accordingly:



     (i) Distributions on the Trust Securities shall be cumulative, and will accumulate whether or
not there are funds of the Trust available for the payment of Distributions. Distributions shall
accumulate from July 2, 2008, and, except in the event (and to the extent) that the Sponsor
exercises its right to defer the payment of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each
year, commencing on September 15, 2008. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of such Distribution shall be made on
the next succeeding day that is a Business Day, and additional interest will accrue for each day
that such payment is delayed as a result thereof (each date on which Distributions are payable in
accordance with this Section 4.1(a), a “Distribution Date”).



     (ii) The Trust Securities shall be entitled to Distributions payable at a rate of 10.50% per
annum of the Liquidation Amount of the Trust Securities. The amount of Distributions payable for
any period less than a full Distribution period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period shall include any Additional
Interest in respect of such period.



     (iii) Distributions on the Trust Securities shall be made by the Paying Agent on behalf of the
Property Trustee from the Payment Account and shall be payable on each Distribution Date only to
the extent that the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.



     (b) Distributions on the Trust Securities with respect to a Distribution Date shall be payable
to the Holders thereof as they appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be the fifteenth day prior to the day on
which the relevant Distribution Date occurs without giving effect to the third sentence of Section
4.1(a)(i) (whether or not such record date is a Business Day).



     Section 4.2 Redemption.



     (a) On each Debenture Redemption Date and on the stated maturity of the Debentures, the Trust
will be required to redeem a Like Amount of Trust Securities at the Redemption Price.



     (b) Notice of redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder
of Trust Securities to be redeemed, at such Holder’s address appearing in the Security Register.
All notices of redemption shall state:



     (i) the Redemption Date;



     (ii) the Redemption Price or if the Redemption Price cannot be calculated prior to the time
the notice is required to be sent, an estimate of the Redemption Price provided pursuant to the
Indenture together with a statement that it is an estimate and that the actual Redemption Price
will be calculated on the third Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);



     (iii) the CUSIP number or CUSIP numbers of the Preferred Securities affected (if applicable);



     (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification
and the aggregate Liquidation Amount of the particular Trust Securities to be redeemed;



16









 





     (v) that on the Redemption Date the Redemption Price will become due and payable upon each
such Trust Security to be redeemed and that Distributions thereon will cease to accumulate on and
after said date, except as provided in Section 4.2(d) below; and



     (vi) the place or places where the Trust Securities are to be surrendered for the payment of
the Redemption Price.



     The Trust in issuing the Trust Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the Trust Securities in
notices of redemption and related materials as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and related materials.



     (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or repayment of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption
Date only to the extent that the Trust has funds then on hand and available in the Payment Account
for the payment of such Redemption Price.



     (d) If the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably
deposit with the Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give such Depositary
irrevocable instructions and authority to pay the Redemption Price to the Holders of the Preferred
Securities. With respect to Preferred Securities that are not Book-Entry Preferred Securities, the
Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the
extent available therefor, funds sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders
of the Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the relevant record dates for
the related Distribution Dates. If notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive the Redemption Price
and any Distribution payable in respect of the Trust Securities on or prior to the Redemption Date,
but without interest, and such Securities will cease to be outstanding. In the event that any date
on which any Redemption Price is payable is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a Business Day (without
any interest or other payment in respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the Sponsor pursuant to the
Guarantee Agreement, Distributions on such Trust Securities will continue to accumulate, as set
forth in Section 4.1, from the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of calculating the Redemption Price.



     (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to be
redeemed shall be allocated pro rata to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts of such classes. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amounts not
more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, provided that so long as the Preferred
Securities are in book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Depositary for the Preferred Securities. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate,
in the case of



17









 




any Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be redeemed.




     Section 4.3 Subordination of Common Securities.



     (a) Payment of Distributions (including any Additional Interest) on, the Redemption Price of,
and the Liquidation Distribution in respect of the Trust Securities, as applicable, shall be made,
subject to Section 4.2(e), pro rata among the Common Securities and the Preferred Securities based
on the Liquidation Amount of the Trust Securities; provided, however, that if on any Distribution
Date, Redemption Date or Liquidation Date any Event of Default resulting from a Debenture Event of
Default specified in Section 5.01(a) of the Indenture shall have occurred and be continuing, no
payment of any Distribution (including any Additional Interest) on, Redemption Price of, or
Liquidation Distribution in respect of any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions (including any Additional Interest) on all
Outstanding Preferred Securities for all Distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds immediately available to
the Property Trustee shall first be applied to the payment in full in cash of all Distributions
(including any Additional Interest) on, or the Redemption Price of, the Preferred Securities then
due and payable.



     (b) In the case of the occurrence of any Event of Default resulting from any Debenture Event
of Default, the Holders of the Common Securities shall have no right to act with respect to any
such Event of Default under this Declaration until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default under this Declaration with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not on behalf of the Holders of the Common Securities, and
only the Holders of the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.



     Section 4.4 Payment Procedures. Payments of Distributions (including any Additional
Interest) in respect of the Preferred Securities shall be made by check mailed to the address of
the Person entitled thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Depositary, such Distributions shall be made to the Depositary
in immediately available funds available funds when due at such place and to such account as may be
designated by the Property Trustee. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Property Trustee and the Holders of the Common
Securities.



     Section 4.5 Tax Returns and Reports. The Administrators shall prepare (or cause to be
prepared), at the Sponsor’s expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the Trust. In this regard,
the Administrators shall (a) prepare and file (or cause to be prepared and filed) all Internal
Revenue Service forms required to be filed in respect of the Trust in each taxable year of the
Trust, and (b) prepare and furnish (or cause to be prepared and furnished) to each Holder all
Internal Revenue Service forms required to be provided by the Trust to such Holder. The
Administrators shall provide the Sponsor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.



     Section 4.6 Payment of Taxes, Duties, Etc. of the Trust. Upon receipt under the
Debentures of Additional Amounts, the Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed on the Trust by
the United States or any other taxing authority, which were included in such Additional Amounts.



     Section 4.7 Payments under Indenture or Pursuant to Direct Actions. Any amount payable
hereunder to any Holder of Preferred Securities (or any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.13 of this Declaration.



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ARTICLE V

TRUST SECURITIES CERTIFICATES




     Section 5.1 Initial Ownership. Upon the formation of the Trust and the contribution by
the Sponsor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time
during which no Trust Securities are outstanding, the Sponsor shall be the sole beneficial owner of
the Trust.



     Section 5.2 The Trust Securities Certificates.



     (a) The Preferred Securities Certificates shall be issued in minimum denominations of $25.00
Liquidation Amount and integral multiples of $25.00 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $25.00 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrator. Trust Securities Certificates bearing the manual
signatures of individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefits of
this Declaration, notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee’s name pursuant to Section 5.5.



     (b) Upon their original issuance, Preferred Securities Certificates shall be issued in the
form of one or more Book-Entry Preferred Securities Certificates registered in the name of DTC, as
Depositary, or its nominee and deposited with DTC or the Securities Registrar as custodian for DTC
for credit by DTC to the respective accounts of the Owners thereof (or such other accounts as they
may direct).



     (c) A single Common Securities Certificate representing the Common Securities shall be issued
to the Sponsor in the form of a definitive Common Securities Certificate.



     Section 5.3 Execution, Delivery and Authentication of Trust Securities Certificates.
At the Closing Date and on any Option Closing Date, as applicable, the Administrators shall cause
Trust Securities Certificates, in the aggregate Liquidation Amounts as provided in Sections 2.4 and
2.5 with respect to Preferred Securities and Common Securities, respectively, to be executed on
behalf of the Trust or upon the written order of the Sponsor, executed by one authorized officer
thereof, and shall cause the Preferred Securities Certificates to be delivered to the Property
Trustee and upon such delivery the Property Trustee shall authenticate such Preferred Securities
Certificates, in each case without further corporate action by the Sponsor, in authorized
denominations. After the Closing Date or the Option Closing Date, as applicable, the Administrators
may without the consent of or notice to the Holders cause additional Preferred Securities to be
executed on behalf of the Trust and delivered to or upon the written order of the Sponsor, such
written order executed by one authorized officer thereof, without further corporate action by the
Sponsor, in authorized denominations; provided, however, that no such additional Preferred
Securities shall be issued unless the Administrators shall have receive an Opinion of Counsel to
the effect that such issuance will not cause the Trust to be taxable as other than one or more
grantor trusts or agency arrangements or to be classified as an association or partnership for U.S.
federal income tax purposes or affect the Trust’s exemption from status as an “investment company”
under the Investment Company Act.



     Each Preferred Securities Certificate shall be dated the date of its authentication.



     No Preferred Securities Certificate shall be entitled to any benefit under this Declaration or
be valid or obligatory for any purpose, unless there appears on such Preferred Securities
Certificate a certificate of authentication substantially in the form provided for in the form
attached as Exhibit B executed by the Property Trustee by the manual signature of one of its
authorized officers, and such certificate upon any Preferred Securities Certificate shall be
conclusive evidence, and the only evidence, that such Preferred Securities Certificate has been
duly authenticated and delivered hereunder.



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     Section 5.4 Book-Entry Preferred Securities.



     (a) Each Book-Entry Preferred Securities Certificate issued under this Declaration shall be
registered in the name of the Depositary or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Book-Entry Preferred Securities Certificate
shall constitute a single Preferred Securities Certificate for all purposes of this Declaration.



     (b) Notwithstanding any other provision in this Declaration, no Book-Entry Preferred
Securities Certificate may be exchanged in whole or in part for Book-Entry Preferred Securities
Certificates registered, and no transfer of a Book-Entry Preferred Securities Certificate in whole
or in part may be registered, in the name of any Person other than the Depositary for such
Book-Entry Preferred Securities Certificate or a nominee thereof unless (A) such Depositary (i) has
notified the Trust that it is unwilling or unable to continue as Depositary for such Book-Entry
Preferred Securities Certificate and no successor Depositary has been appointed within 90 days of
this notice or (ii) has ceased to be a Depositary registered under the Exchange Act at a time when
the Depositary is required to be so registered to act as clearing agent and no successor Depositary
has been appointed within 90 days after the Trust has learned that the Depositary has ceased to be
so registered, (B) there shall have occurred and be continuing a Debenture Event of Default, or (C)
the Sponsor in its sole discretion determines that such Book-Entry Preferred Securities Certificate
will be so exchangeable or transferable. Upon the occurrence of any event specified in clause (A),
(B) or (C) above, the Property Trustee shall notify the Depositary and instruct the Depositary to
notify all Owners of Book-Entry Preferred Securities and the Administrators of the occurrence of
such event and of the availability of the Definitive Preferred Securities Certificates to Owners of
such class or classes, as applicable, requesting the same.



     (c) If any Book-Entry Preferred Securities Certificate is to be exchanged for other Preferred
Securities Certificates or cancelled in part, or if any other Preferred Securities Certificate is
to be exchanged in whole or in part for Book-Entry Preferred Securities represented by a Book-Entry
Preferred Securities Certificate, then either (i) such Book-Entry Preferred Securities Certificate
shall be so surrendered for exchange or cancellation as provided in this Article V or (ii) the
aggregate Liquidation Amount represented by such Book-Entry Preferred Securities Certificate shall
be reduced, subject to Section 5.2, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Book-Entry Preferred Securities Certificate to be so exchanged
or cancelled, or equal to the Liquidation Amount represented by such other Preferred Securities
Certificates to be so exchanged for Book-Entry Preferred Securities represented thereby, as the
case may be, by means of an appropriate adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding adjustment to its records. Upon
surrender to the Administrators or the Securities Registrar of the Book-Entry Preferred Securities
Certificate or Certificates by the Depositary, accompanied by registration instructions, the
Administrators, or any one of them, shall execute the Definitive Preferred Securities Certificates
in accordance with the instructions of the Depositary. None of the Securities Registrar, the
Property Trustees, the Delaware Trustee or the Administrators shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates as Holders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrators, as evidenced by the
execution thereof by the Administrators or any one of them.



     (d) Every Preferred Securities Certificate executed and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Book-Entry Preferred Securities Certificate or any
portion thereof, whether pursuant to this Article V or Article IV or otherwise, shall be executed
and delivered in the form of, and shall be, a Book-Entry Preferred Securities Certificate, unless
such Preferred Securities Certificate is registered in the name of a Person other than the
Depositary for such Book-Entry Preferred Securities Certificate or a nominee thereof.



     (e) The Depositary or its nominee, as registered owner of a Book-Entry Preferred Securities
Certificate, shall be the Holder of such Book-Entry Preferred Securities Certificate for all
purposes under this Agreement and the Book-Entry Preferred Securities Certificate, and Owners with
respect to a Book-Entry Preferred Securities Certificate shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and Distributions on the
Book-Entry



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Preferred Securities represented thereby and the giving of instructions or directions by Owners of
Book-Entry Preferred Securities represented thereby) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners thereof. None of the
Trustees nor the Securities Registrar shall have any liability in respect of any transfers effected
by the Depositary.




     The rights of the Owners of the Book-Entry Preferred Securities shall be exercised only
through the Depositary and shall be limited to those established by law, the Applicable Procedures
and agreements between such Owners and the Depositary and/or the Depositary Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.4(b), the initial Depositary will make book-entry
transfers among the Depositary Participants and receive and transmit payments on the Preferred
Securities to such Depositary Participants, and none of the Sponsor or the Trustees shall have any
responsibility or obligation with respect thereto.



     Section 5.5 Registration of Transfer and Exchange of Preferred Securities
Certificates.



     (a) The Property Trustee shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 5.9, a register or registers for the purpose of registering Trust Securities
Certificates and transfers and exchanges of Trust Securities Certificates (the “Securities
Register”) in which the registrar and transfer agent with respect to the Trust Securities (the
“Securities Registrar”), subject to such reasonable regulations as it may prescribe, shall provide
for the registration of Preferred Securities Certificates and Common Securities Certificates
(subject to Section 5.11 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided. The Person acting
as the Property Trustee shall at all times also be the Securities Registrar.



     Upon surrender for registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 5.9, the Administrators or any one of them shall
execute and deliver to the Property Trustee, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate Liquidation Amount dated
the date of execution by such Administrator or Trustees.



     The Securities Registrar shall not be required, (i) to issue, register the transfer of or
exchange any Preferred Security during a period beginning at the opening of business 15 days before
the day of selection for redemption of such Preferred Securities pursuant to Article IV and ending
at the close of business on the day of mailing of the notice of redemption, or (ii) to register the
transfer of or exchange any Preferred Security so selected for redemption in whole or in part,
except, in the case of any such Preferred Security to be redeemed in part, any portion thereof not
to be redeemed.



     Every Preferred Securities Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form satisfactory to an
Administrator and the Securities Registrar duly executed by the Holder or its attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the Property Trustee in
accordance with its customary practice.



     No service charge shall be made for any registration of transfer or exchange of Preferred
Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.



     (b) Notwithstanding any other provision of this Declaration, transfers and exchanges of
Preferred Securities Certificates and beneficial interests in a Book-Entry Preferred Securities
Certificate of the kinds specified in this Section 5.5(b) shall be made only in accordance with
this Section 5.5(b).



     (i) Non-Book-Entry Preferred Securities Certificate to Book-Entry Preferred Securities
Certificate. If the Holder of a Preferred Securities Certificate (other than a Book-Entry
Preferred Securities Certificate) wishes at any time to transfer all or any portion of such
Preferred Securities Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in a Book-Entry Preferred Securities Certificate, such transfer may be effected
only in accordance with the provisions of this clause (b)(i) and subject to the Applicable
Procedures. Upon



21









 




receipt by the Securities Registrar of (A) such Preferred Securities Certificate as provided in
Section 5.5(a) and instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Book-Entry Preferred Securities Certificate of a specified number of
Preferred Securities not greater than the number of Preferred Securities represented by such
Preferred Securities Certificate be credited to a specified Depositary Participant’s account, then
the Securities Registrar shall cancel such Preferred Securities Certificate (and issue a new
Preferred Securities Certificate in respect of any untransferred portion thereof) as provided in
Section 5.5(a) and increase the aggregate Liquidation Amount of the Book-Entry Preferred Securities
Certificate by the Liquidation Amount represented by such Preferred Securities so transferred as
provided in Section 5.4(c).




     (ii) Non-Book-Entry Preferred Securities Certificate to Non-Book-Entry Preferred
Securities Certificate. A Preferred Securities Certificate that is not a Book-Entry Preferred
Securities Certificate may be transferred, in whole or in part, to a Person who takes delivery in
the form of another Preferred Securities Certificate that is not a Book-Entry Preferred Securities
Certificate as provided in Section 5.5(a).



     (iii) Exchanges between Book-Entry Preferred Securities Certificate and Non-Book-Entry
Preferred Securities Certificate. A beneficial interest in a Book-Entry Preferred Securities
Certificate may be exchanged for a Preferred Securities Certificate that is not a Book-Entry
Preferred Securities Certificate as provided in Section 5.4.



     Section 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (a)
any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if
the Securities Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate, and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be required by them to save each
of them harmless, then in the absence of notice that such Trust Securities Certificate shall have
been acquired by a protected purchaser, the Administrators, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.6, the Administrators or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate issued pursuant to this
Section shall constitute conclusive evidence of an undivided beneficial interest in the assets of
the Trust corresponding to that evidenced by the lost, stolen or destroyed Trust Securities
Certificate, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.



     Section 5.7 Persons Deemed Holders. The Trustees and the Securities Registrar shall
each treat the Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and none of the Trustees and the Securities
Registrar shall be bound by any notice to the contrary.



     Section 5.8 Access to List of Holders’ Names and Addresses. Each Holder and each Owner
shall be deemed to have agreed not to hold the Sponsor, or the Trustees accountable by reason of
the disclosure of its name and address, regardless of the source from which such information was
derived.



     Section 5.9 Maintenance of Office or Agency. The Property Trustee shall designate,
with the consent of the Administrators, which consent shall not be unreasonably withheld, an office
or offices or agency or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Administrators initially designate
the Property Trustee’s Corporate Trust Office, as its office and agency for such purposes. The
Property Trustee shall give prompt written notice to the Sponsor, the Administrators and to the
Holders of any change in the location of the Securities Register or any such office or agency.



     Section 5.10 Appointment of Paying Agent. The Paying Agent shall make Distributions to
Holders from the Payment Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable power to withdraw funds
from the Payment Account solely for the purpose of making the Distributions referred to above. The
Administrators may revoke such power and remove the Paying Agent in their sole discretion. The
Paying Agent shall initially be U.S. Bank Trust National Association. Any Person acting as Paying
Agent shall be permitted to resign as Paying Agent upon 30 days’ written



22









 




notice to the Administrators and the Property Trustee. If U.S. Bank Trust National Association
shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrators shall appoint a successor (which shall be a bank or trust
company) to act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Administrators shall execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by
it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds
in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to U.S. Bank Trust National Association in its role as Paying Agent, for so long as U.S. Bank
Trust National Association shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Declaration to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.




     Section 5.11 Ownership of Common Securities by Sponsor. At the Closing Date, the
Sponsor shall acquire, and thereafter shall retain, beneficial and record ownership of the Common
Securities. The Sponsor may not transfer the Common Securities except (i) in connection with a
consolidation or merger of the Sponsor into another corporation, or any conveyance, transfer or
lease by the Sponsor of its properties and assets substantially as an entirety to any Person,
pursuant to Article VIII of the Indenture, or (ii) to an Affiliate of the Sponsor in compliance
with applicable law (including the Securities Act and applicable state securities and blue sky
laws). To the fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the next proceeding sentence shall be void. The Administrators shall
cause each Common Securities Certificate issued to the Sponsor to contain a legend stating
substantially “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE DECLARATION.”



     Section 5.12 Notices to Depositary. To the extent that a notice or other communication
to the Holders is required under this Declaration, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Trustees shall give all such
notices and communications specified herein to be given to the Depositary, and shall have no
obligations to the Owners.



     Section 5.13 Rights of Holders; Waivers of Past Defaults.



     (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in
its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or
title therein other than the undivided beneficial interest in the assets of the Trust conferred by
their Trust Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein, in this Declaration and in
the Delaware Statutory Trust Act. The Trust Securities shall have no preemptive or similar rights
and when issued and delivered to Holders against payment of the purchase price therefor will be
fully paid and nonassessable by the Trust. Subject to the provisions of Section 2.10, the Holders
of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.



     (b) For so long as any Preferred Securities remain Outstanding, if, upon a Debenture Event of
Default, the Debenture Trustee fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due
and payable, then to the fullest extent permitted by law, and subject to the terms of the Indenture
and this Declaration, the Holders of at least 25% in Liquidation Amount of the Preferred Securities
then Outstanding shall have the right to make such declaration by a notice in writing to the
Sponsor and the Debenture Trustee.



     At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as in the Indenture provided, if the Property Trustee fails to annul any such declaration
and waive such default, the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Sponsor and the Debenture
Trustee, may rescind and annul such declaration and its consequences if:




23











 





     (i) the Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to pay



     (A) all overdue installments of interest (including any Additional Interest) on all of the
Debentures,



     (B) the principal of (and premium, if any, on) any Debentures that have become due otherwise
than by such declaration of acceleration and interest (including any Additional Interest) thereon
at the rate borne by the Debentures, and



     (C) all sums paid or advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Debenture Trustee, its agents and
counsel; and



     (ii) all Events of Default with respect to the Debentures, other than the non-payment of the
principal of the Debentures that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13 of the Indenture.



     To the fullest extent permitted by law and subject to the terms of this Declaration and the
Indenture, the Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any past default under the
Indenture, except a default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and principal due otherwise
than by acceleration has been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision that under the Indenture cannot be modified or amended without the consent of
the holder of each outstanding Debenture. No such rescission shall affect any subsequent default or
impair any right consequent thereon.



     Upon receipt by the Property Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Preferred Securities a record date
shall be established for determining Holders of Outstanding Preferred Securities entitled to join
in such notice, which record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such record date, such notice
of declaration of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a written notice that
has been canceled pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).



     (c) For so long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Declaration and the Indenture, upon a Debenture
Event of Default specified in Section 5.01(a) of the Indenture, any Holder of Preferred Securities
shall have the right to institute a proceeding directly against the Sponsor, pursuant to
Section 5.08 of the Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Debentures having an aggregate principal amount equal to the aggregate Liquidation
Amount of the Preferred Securities of such Holder (a “Direct Action”). Except as set forth in
Section 5.13(b) and this Section 5.13(c), the Holders of Preferred Securities shall have no right
to exercise directly any right or remedy available to the holders of, or in respect of, the
Debentures.



     (d) Except as otherwise provided in clauses (a), (b) and (c) of this Section 5.13, to the
fullest extent permitted by law and subject to the terms of this Declaration and the Indenture, the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of
the Holders of all the Preferred Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose
of this Declaration, but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.



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ARTICLE VI

ACTS OF HOLDERS; MEETINGS; VOTING




     Section 6.1 Limitations on Voting Rights.



     (a) Except as expressly provided in this Declaration and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the Holders from time to time as partners
or members of an association.



     (b) So long as any Debentures are held by the Property Trustee on behalf of the Trust, the
other Trustees shall not (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be waived under
Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each Holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously authorized or approved by
a vote of the Holders of the Preferred Securities, except by a subsequent vote of the Holders of
the Preferred Securities. The Property Trustee shall notify all Holders of the Preferred Securities
of any notice of default received with respect to the Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Sponsor, obtain an Opinion of Counsel
experienced in such matters to the effect that such action shall not cause the Trust to be taxable
as a corporation or classified as other than a grantor trust for United States Federal income tax
purposes.



     (c) If any proposed amendment to the Declaration provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of amendment to this
Declaration or otherwise, or (ii) the dissolution of the Trust, other than pursuant to the terms of
this Declaration, then the Holders of Outstanding Preferred Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or proposal shall not be effective except
with the approval of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities. Notwithstanding any other provision of this Declaration, no amendment to this
Declaration may be made if, as a result of such amendment, it would cause the Trust to be taxable
as a corporation or classified as other than a grantor trust for United States Federal income tax
purposes.



     Section 6.2 Notice of Meetings. Notice of all meetings of the Holders of the Preferred
Securities, stating the time, place and purpose of the meeting, shall be given by the
Administrators or, at the written request of the Administrators, by the Property Trustee pursuant
to Section 10.8 to each Holder of Preferred Securities, at such Holder’s registered address, at
least 20 days and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further notice.



     Section 6.3 Meetings of Holders of the Preferred Securities. No annual meeting of
Holders is required to be held. The Administrators, however, shall call a meeting of the Holders of
the Preferred Securities to vote on any matter upon the written request of the Holders of at least
25% in aggregate Liquidation Amount of the Outstanding Preferred Securities and the Administrators
or the Property Trustee may, at any time in their or its discretion, call a meeting of the Holders
of the Preferred Securities to vote on any matters as to which such Holders are entitled to vote.



     The Holders of at least a Majority in Liquidation Amount of the Preferred Securities, present
in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Preferred
Securities.



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     If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or
by proxy, holding Preferred Securities representing at least a Majority in aggregate Liquidation
Amount of the Preferred Securities held by the Holders present, either in person or by proxy, at
such meeting shall constitute the action of the Holders of the Preferred Securities, unless this
Declaration requires a greater number of affirmative votes.



     Section 6.4 Voting Rights. Holders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.



     Section 6.5 Proxies, etc. At any meeting of Holders, any Holder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Administrators, or with such other officer or agent of the Trust
as the Administrators may direct, for verification prior to the time at which such vote shall be
taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only Holders of record shall
be entitled to vote. When Trust Securities are held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one
of them shall be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years after its date of
execution.



     Section 6.6 Holder Action by Written Consent. Any action that may be taken by Holders
at a meeting may be taken without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of all Preferred Securities entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any other provision of this
Declaration) shall consent to the action in writing.



     Section 6.7 Record Date for Voting and Other Purposes. For the purposes of determining
the Holders who are entitled to notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Declaration, or for the purpose of any other action, the
Administrators or Property Trustee may from time to time fix a date, not more than 90 days prior to
the date of any meeting of Holders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the Holders of record for such
purposes.



     Section 6.8 Acts of Holders. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrator. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this Declaration and
(subject to Section 8.1) conclusive in favor of the Trustees, if made in the manner provided in
this Section.



     The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that any Trustee receiving the same deems sufficient.



     The ownership of Trust Securities shall be proved by the Securities Register.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder of every Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done,



26









 







omitted or suffered to be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.



     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Trust Security may do so with regard to all or any part of the Liquidation
Amount of such Trust Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation Amount.



     If any dispute shall arise among the Holders or the Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction, consent, waiver or
other Act of such Holder or Trustee under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such matter.



     Section 6.9 Inspection of Records. Upon reasonable notice to the Administrators and
the Property Trustee, the records of the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder’s interest as a Holder.



ARTICLE VII

REPRESENTATIONS AND WARRANTIES




     Section 7.1 Representations and Warranties of the Property Trustee and the Delaware
Trustee. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to
itself, hereby represents and warrants for the benefit of the Sponsor and the Holders that:



     (a) the Property Trustee is a national banking association having its principal place of
business in the State of Delaware, duly organized, validly existing and in good standing under the
laws of the United States of America;



     (b) the Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Declaration and has taken all necessary action to
authorize the execution, delivery and performance by it of this Declaration;



     (c) the Delaware Trustee is a national banking association having its principal place of
business in the State of Delaware, duly organized, validly existing and in good standing under the
laws of the United States of America;



     (d) the Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Declaration and has taken all necessary action to
authorize the execution, delivery and performance by it of this Declaration;



     (e) this Declaration has been duly authorized, executed and delivered by the Property Trustee
and the Delaware Trustee and constitutes the valid and legally binding agreement of each of the
Property Trustee and Delaware Trustee enforceable against each of them in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles;



     (f) the execution, delivery and performance of this Declaration have been duly authorized by
all necessary corporate or other action on the part of the Property Trustee and Delaware Trustee
and does not require any approval of stockholders of the Property Trustee and Delaware Trustee and
such execution, delivery and performance will not (i) violate the Certificate of Incorporation or
By-laws of the Property Trustee and Delaware Trustee, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the creation or imposition
of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument to which the
Property Trustee or the Delaware is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the United States of America governing the banking, trust or
general powers of the Property Trustee and Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee and Delaware Trustee;



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     (g) neither the authorization, execution or delivery by the Property Trustee and Delaware
Trustee of this Declaration nor the consummation of any of the transactions by the Property Trustee
or Delaware Trustee (as appropriate in context) contemplated herein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing law governing the banking, trust
or general powers of the Property Trustee or Delaware Trustee, as the case may be, under the laws
of the United States, or the State of Delaware;



     (h) there are no proceedings pending or, to the best of each of the Property Trustee’s and
Delaware Trustee’s knowledge, threatened against or affecting the Property Trustee and Delaware
Trustee in any court or before any governmental authority, agency or arbitration board or tribunal
that, individually or in the aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee and Delaware Trustee, as the case
may be, to enter into or perform its obligations as one of the Trustees under this Declaration; and



     (i) the Property Trustee is a person eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000.00.



     Section 7.2 Representations and Warranties of Sponsor. The Sponsor hereby represents
and warrants for the benefit of the Holders that:



     (a) the Trust Securities Certificates issued on the Closing Date or on any Option Closing
Date, if applicable, on behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and provisions of, and
in accordance with the requirements of, this Declaration and the Holders will be, as of each such
date, entitled to the benefits of this Declaration; and



     (b) there are no taxes, fees or other governmental charges payable by the Trust (or the
Trustees on behalf of the Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and performance by the Property
Trustee and Delaware Trustee of this Declaration.



ARTICLE VIII

THE TRUSTEES




     Section 8.1 Certain Duties and Responsibilities.



     (a) The rights, immunities, duties and responsibilities of the Trustees shall be as provided
by this Declaration and, in the case of the Property Trustee, by the Trust Indenture Act (and there
shall be no other duties (including fiduciary duties) or obligations, express or implied, at law or
in equity, of the Trustees). Notwithstanding the foregoing, no provision of this Declaration shall
require any of the Trustees to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it or they shall have reasonable grounds for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Declaration relating to the
conduct or affecting the liability of or affording protection to the Trustees shall be subject to
the provisions of this Section 8.1. The Property Trustee’s liability shall be determined under the
Trust Indenture Act. Nothing in this Declaration shall be construed to release an Administrator
from liability for his or her own negligent action, his or her own negligent failure to act, or his
or her own willful misconduct with respect to acts or omissions. To the extent that, at law or in
equity, an Trustee has duties and liabilities relating to the Trust or to the Holders, such Trustee
shall not be liable to the Trust or to any Holder for such Trustee’s good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the extent that they
restrict or eliminate the duties and liabilities of the Trustees otherwise existing at law or in
equity, are agreed by the Sponsor and the Holders to replace such other duties and liabilities of
the Trustees.



     (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it will look solely



28









 







to the revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 8.1(b) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.



     (c) No provision of this Declaration shall be construed to relieve the Property Trustee (or
any separate Delaware Trustee) from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:



     (i) the Property Trustee shall not be liable for any error of judgment made in good faith by
an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;



     (ii) the Property Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust
or power conferred upon the Property Trustee under this Declaration;



     (iii) the Property Trustee’s sole duty with respect to the custody, safe keeping and physical
preservation of the Debentures and the Payment Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;



     (iv) the Property Trustee shall not be liable for any interest on any money received by it
except as it may otherwise agree with the Sponsor; and money held by the Property Trustee need not
be segregated from other funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law;



     (v) the Property Trustee shall not be responsible for monitoring the compliance by the
Administrators or the Sponsor with their respective duties under this Declaration, nor shall the
Property Trustee be liable for the default or misconduct of any other Trustee or the Sponsor; and



     (vi) No provision of this Declaration shall require the Property Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers.



     (d) The Administrators shall not be responsible for monitoring the compliance by the other
Trustees or the Sponsor with their respective duties under this Declaration, nor shall any
Administrator be liable for the default or misconduct of any other Administrator, the other
Trustees or the Sponsor.



     Section 8.2 Certain Notices. Within five Business Days after the occurrence of any
Event of Default actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of Default to the
Holders, the Administrators and the Sponsor, unless such Event of Default shall have been cured or
waived.



     Within five Business Days after the receipt of notice of the Sponsor’s exercise of its right
to defer the payment of interest on the Debentures pursuant to the Indenture, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.8, notice of such exercise
to the Holders, unless such exercise shall have been revoked.



     Section 8.3 Certain Rights of Property Trustee. Subject to the provisions of
Section 8.1:



     (a) the Property Trustee may rely and shall be protected in acting or refraining from acting
in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,



29









 







bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;



     (b) if (i) in performing its duties under this Declaration the Property Trustee is required to
decide between alternative courses of action, (ii) in construing any of the provisions of this
Declaration the Property Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (iii) the Property Trustee is unsure of the application of any provision of
this Declaration, then, except as to any matter as to which the Holders of the Preferred Securities
are entitled to vote under the terms of this Declaration, the Property Trustee shall deliver a
notice to the Sponsor requesting the Sponsor’s opinion as to the course of action to be taken, and
the Property Trustee shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking, by the Sponsor;
provided, however, that if the Property Trustee does not receive such instructions of the Sponsor
within ten Business Days after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration as it shall deem advisable and in the best interests of the
Holders, in which event the Property Trustee shall have no liability except for its own negligence
or willful misconduct;



     (c) any direction or act of the Sponsor contemplated by this Declaration shall be sufficiently
evidenced by an Officers’ Certificate;



     (d) any direction or act of an Administrator contemplated by this Declaration shall be
sufficiently evidenced by a certificate executed by such Administrator and setting forth such
direction or act;



     (e) the Property Trustee shall have no duty to see to any recording, filing or registration of
any instrument (including any financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration thereof;



     (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Sponsor
or any of its Affiliates, and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice;
the Property Trustee shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction;



     (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Declaration at the request or direction of any of the Holders or the Sponsor
pursuant to this Declaration, unless such Holders or Sponsor shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction; provided that nothing contained in
this Section 8.3(g) shall be taken to relieve the Property Trustee, upon the occurrence of an Event
of Default actually known to a Responsible Officer of the Property Trustee, of its obligation to
exercise the rights and powers vested in it by this Declaration;



     (h) the Property Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or matters as it may see
fit;



     (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence or misconduct with respect to
selection of any agent or attorney appointed by it hereunder;



     (j) whenever in the administration of this Declaration the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request instructions from the Holders (which
instructions may only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such



30









 







remedy or right or taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and



     (k) except as otherwise expressly provided by this Declaration, the Property Trustee shall not
be under any obligation to take any action that is discretionary under the provisions of this
Declaration.



     No provision of this Declaration shall be deemed to impose any duty or obligation on any
Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be
unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or
to exercise any such right, power, duty or obligation. No permissive power or authority available
to any Trustee shall be construed to be a duty.



     Whether or not therein expressly so provided, every provision of this Declaration relating to
the conduct or affecting the liability of or affording protection to the Property Trustee shall
extend to each of the Security Registrar, the Paying Agent and the Delaware Trustee and shall be
subject to the provisions of this Article VIII.



     Section 8.4 Not Responsible for Recitals or Issuance of Securities. The recitals
contained herein and in the Trust Securities Certificates shall be taken as the statements of the
Trust and the Sponsor, and the Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the Sponsor of the proceeds of the
Debentures.



     The Property Trustee may conclusively assume that any funds held by it hereunder are legally
available unless an officer of the Property Trustee assigned to its institutional trust services
department shall have received written notice from the Sponsor, any Holder or any other Trustee
that such funds are not legally available.



     Section 8.5 May Hold Securities. Any Trustee or any other agent of any Trustee or the
Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities
and, subject to Sections 8.8 and 8.13, and except as provided in the definition of the term
“Outstanding” in Article I, may otherwise deal with the Trust with the same rights it would have if
it were not an Trustee or such other agent.



     Section 8.6 Compensation; Indemnity; Fees. The Sponsor agrees:



     (a) to pay to the Trustees from time to time such reasonable compensation for all services
rendered by them hereunder as may be agreed by the Sponsor and the Trustees from time to time
(which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);



     (b) except as otherwise expressly provided herein, to reimburse the Trustees upon request for
all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance
with any provision of this Declaration (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense, disbursement or advance as may
be attributable to their negligence or willful misconduct; and



     (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the Trust (referred to
herein as an “Indemnified Person”) from and against any loss, damage, liability, action, suit, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by
reason of the creation, operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person on behalf of the Trust, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage, action, suit or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with respect to such acts or
omissions.



     The provisions of this Section 8.6 shall survive the termination of this Declaration and the
removal or resignation of any Trustee.



     No Trustee may claim any Lien on any Trust Property as a result of any amount due pursuant to
this Section 8.6.



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     Section 8.7 Corporate Trustee Required; Eligibility of Trustees.



     (a) There shall at all times be a trustee hereunder with respect to the Trust Securities who
shall serve the function of Property Trustee. The Property Trustee shall be a Person that is a
national or state chartered bank and eligible pursuant to the Trust Indenture Act to act as such
and that has a combined capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements of its supervising
or examining authority, then for the purposes of this Section and to the extent permitted by the
Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. At the time of appointment, the Property Trustee
must have securities rated in one of the three highest rating categories by a nationally recognized
statistical rating organization.



     (b) There shall at all times be one or more Administrators hereunder with respect to the Trust
Securities. Each Administrator shall be either a natural person who is at least 21 years of age or
a legal entity that shall act through one or more persons authorized to bind that entity.



     (c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. Such
trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the
State of Delaware, or (ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable Delaware law and that shall act
through one or more persons authorized to bind such entity.



     Section 8.8 Conflicting Interests.



     (a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Declaration.



     (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in
this Declaration for the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.



     Section 8.9 Co-Trustees and Separate Trustee. Unless an Event of Default shall have
occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at
the time be located, the Sponsor and the Administrators, by agreed action of the majority of such
Trustees, shall have power to appoint, and upon the written request of the Administrators, the
Sponsor shall for such purpose join with the Administrators in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the Property Trustee, of
all or any part of such Trust Property, or to the extent required by law to act as separate trustee
of any such property, in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of this Section. Any
co-trustee or separate trustee appointed pursuant to this Section shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States, or (ii) a legal entity
with its principal place of business in the United States that shall act through one or more
persons authorized to bind such entity. In case an Event of Default under the Indenture shall have
occurred and be continuing, the Property Trustee alone shall have the power to make such
appointment.



     Unless an Event of Default shall have occurred and be continuing, at any time or times, for
the purpose of meeting the legal requirements of the Delaware Statutory Trust Act, the Sponsor and
the Administrators, by agreed action of the majority of such Trustees, shall have power to appoint,
and upon the written request of the Administrators, the Sponsor shall for such purpose join with
the Administrators in the execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint a separate Delaware Trustee.



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     Should any written instrument from the Sponsor be required by any co-trustee or separate
trustee so appointed for more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Sponsor.



     Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following terms, namely:



     (a) The Trust Securities Certificates shall be executed by one or more Administrators, and the
Trust Securities Certificates shall be delivered by the Property Trustee, and all rights, powers,
duties, and obligations hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Property Trustee specified
hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or separate
trustee.



     (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property
Trustee in respect of any property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.



     (c) The Property Trustee at any time, by an instrument in writing executed by it, with the
written concurrence of the Sponsor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence of the Sponsor. Upon the
written request of the Property Trustee, the Sponsor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or separate trustee so
resigning or removed may be appointed in the manner provided in this Section.



     (d) No co-trustee or separate trustee hereunder shall be personally liable by reason of any
act or omission of the Property Trustee or any other trustee hereunder.



     (e) The Property Trustee shall not be liable by reason of any act of a co-trustee or separate
trustee.



     (f) Any Act of Holders delivered to the Property Trustee shall be deemed to have been
delivered to each such co-trustee and separate trustee.



     Section 8.10 Resignation and Removal; Appointment of Successor. No resignation or
removal of any Trustee (the “Relevant Trustee”) and no appointment of a successor Trustee pursuant
to this Article shall become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 8.11.



     Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by
giving written notice thereof to the Sponsor. If the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.



     Unless a Debenture Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by Act of the Holders of Common Securities. If a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of
them, may be removed at such time by Act of the Holders of a Majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual capacity and on behalf
of the Trust). An Administrator may be removed by the Holders of Common Securities at any time. In
no event will the Holders of the Preferred Securities have a right to vote to appoint, remove or
replace the Administrators.



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     If any Trustee shall resign, be removed or become incapable of acting as Trustee, or if a
vacancy shall occur in the office of any Trustee for any reason, at a time when no Debenture Event
of Default shall have occurred and be continuing, the Holders of Common Securities, by Act of the
Holders of Common Securities, shall promptly appoint a successor Trustee or Trustees, and the
retiring Trustee shall comply with the applicable requirements of Section 8.11. If the Property
Trustee or the Delaware Trustee shall resign, be removed or become incapable of continuing to act
as the Property Trustee or the Delaware Trustee, as the case may be, at a time when a Debenture
Event of Default shall have occurred and be continuing, the Holders of Preferred Securities, by Act
of the Holders of a Majority in Liquidation Amount of the Preferred Securities then Outstanding
shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall
comply with the applicable requirements of Section 8.11. If an Administrator shall resign, be
removed or become incapable of acting as Administrator, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Holders of Common Securities by Act of the Holders of
Common Securities shall promptly appoint a successor Administrator or Administrators and such
successor Administrator or Trustees shall comply with the applicable requirements of Section 8.11.
If no successor Relevant Trustee shall have been so appointed by the Holders of Common Securities
or the Holders of Preferred Securities and accepted appointment in the manner required by
Section 8.11, any Holder who has been a Holder of Trust Securities for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.



     The Property Trustee shall give notice of each resignation and each removal of an Trustee and
each appointment of a successor Trustee to all Holders in the manner provided in Section 10.8 and
shall give notice to the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property Trustee.



     Notwithstanding the foregoing or any other provision of this Declaration, in the event any
Administrator or a Delaware Trustee who is a natural person dies or becomes, in the opinion of the
Sponsor, incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining Administrators if there are at
least two of them or (b) otherwise by the Sponsor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrators or Delaware Trustee, as the case may
be, set forth in Section 8.7).



     Section 8.11 Acceptance of Appointment by Successor. In case of the appointment
hereunder of a successor Trustee such successor Trustee so appointed shall execute, acknowledge and
deliver to the Trust and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Sponsor or
the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and if the Property Trustee is the resigning Trustee shall duly assign,
transfer and deliver to the successor Trustee all property and money held by such retiring Property
Trustee hereunder.



     In case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee (if requested by the Sponsor) and each successor Relevant Trustee with respect to the Trust
Securities may execute and deliver an amendment hereto wherein each successor Relevant Trustee
shall accept such appointment and which (a) may contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust, and (b) may add to or change any of the provisions of this Declaration as
may be necessary to provide for or facilitate the administration of the Trust by more than one
Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute
such Relevant Trustees co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.



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     Upon request of any such successor Relevant Trustee, the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph,
as the case may be.



     No successor Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under this Article.



     Section 8.12 Merger, Conversion, Consolidation or Succession to Business. Any Person
into which any of the Trustees that is not a natural Person may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which such Relevant Trustee shall be a party, or any Person, succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the part of any of the
parties hereto.



     Section 8.13 Preferential Collection of Claims Against Sponsor or Trust. If and when
the Property Trustee shall be or become a creditor of the Sponsor or the Trust (or any other
obligor upon the Preferred Securities), the Property Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Sponsor or the Trust (or any
such other obligor).



     Section 8.14 Property Trustee May File Proofs of Claim. In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the Trust Securities or
the property of the Trust or of such other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust Securities shall then be due and payable
and irrespective of whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in
respect of the Trust Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and



     (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents
and counsel, and any other amounts due the Property Trustee.



     Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.



     Section 8.15 Reports by Property Trustee.



     (a) The Property Trustee shall transmit to Holders such reports concerning the Property
Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto. Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted no later than 30
days after September 15 in each calendar year, commencing with the first September 15 after the
first issuance of Securities under this Declaration.



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     (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
or on behalf of the Property Trustee with each national securities exchange and such other
interdealer quotation system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Sponsor.



     Section 8.16 Reports to the Property Trustee. Each of the Sponsor and the
Administrators shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act. The Sponsor and the Administrators shall annually file
with the Property Trustee a certificate specifying whether such Person is in compliance with all of
the terms and covenants applicable to such Person hereunder.



     Section 8.17 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and
the Administrators shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the
form of an Officers’ Certificate.



     Section 8.18 Number of Trustees.



     (a) The number of Trustees shall be five, provided that the Property Trustee and the Delaware
Trustee may be the same Person. The number of Trustees may be increased or decreased by the Holder
of the Common Securities subject to Section 8.7 and 8.20. The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not
operate to annual, dissolve or terminate the Trust.



     (b) If an Trustee ceases to hold office for any reason, a vacancy shall occur. The vacancy
shall be filled with an Trustee appointed in accordance with Section 8.10.



     (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to
perform the duties of an Trustee shall not operate to annul, dissolve or terminate the Trust.



     Section 8.19 Delegation of Power.



     (a) Any Administrator may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.7(a), including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and



     (b) The Administrators shall have power to delegate from time to time to such of their number
or to the Sponsor the doing of such things and the execution of such instruments either in the name
of the Trust or the names of the Administrators or otherwise as the Administrators may deem
expedient, to the extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Declaration.



     Section 8.20 Appointment of Administrators.



     (a) The Administrators shall initially be Rick J. Green, an individual, Kerby Crowell, an
individual, and Laura Bright, an individual, and their successors shall be appointed by the Holders
of a Majority in Liquidation Amount of the Common Securities, and they may resign or be removed by
the Holders of a Majority in Liquidation Amount of the Common Securities at any time. Upon any
resignation or removal, the Holders of the Common Securities shall appoint a successor
Administrator. Each successor Administrator shall sign an agreement agreeing to comply with the
terms of this Declaration. If at any time there is no Administrator, the Property Trustee or any
Holder who has been a Holder of Trust Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more Administrators.



     (b) Whenever a vacancy in the number of Administrators shall occur, until such vacancy is
filled by the appointment of an Administrator in accordance with this Section 8.20, the
Administrators in office, regardless of



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their number (and notwithstanding any other provision of this Agreement), shall have all the powers
granted to the Administrators and shall discharge all the duties imposed upon the Administrators by
this Declaration.



     (c) Notwithstanding the foregoing or any other provision of this Declaration, if any
Administrator who is a natural person dies or becomes, in the opinion of the Sponsor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by
the unanimous acts of the remaining Administrators, if there were at least two of them prior to
such vacancy, and by the Sponsor, if there were not two such Administrators immediately prior to
such vacancy (with the successor being a Person who satisfies the eligibility requirement for
Administrators set forth in Section 8.7).



ARTICLE IX

TERMINATION, LIQUIDATION AND MERGER




     Section 9.1 Dissolution Upon Expiration Date. Unless earlier dissolved, the Trust
shall automatically dissolve on September 15, 2043 (the “Expiration Date”), and the Trust Property
shall be liquidated in accordance with Section 9.4.



     Section 9.2 Early Dissolution. The first to occur of any of the following events is an
“Early Dissolution Event”, upon the occurrence of which the Trust shall dissolve:



     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of,
the Sponsor;



     (b) the written direction to the Property Trustee from all of the Holders of the Common
Securities at any time to dissolve the Trust and to distribute the Debentures to Holders in
exchange for the Preferred Securities (which direction is optional and wholly within the discretion
of the Holders of the Common Securities);



     (c) the redemption of all of the Preferred Securities in connection with the redemption of all
the Debentures; and



     (d) the entry of an order for dissolution of the Trust by a court of competent jurisdiction.



     Section 9.3 Termination. The respective obligations and responsibilities of the
Trustees shall terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed hereunder upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrators, including the performance of any tax
reporting obligations with respect to the Trust or the Holders. As soon as is practicable after the
last to occur of any of the above events, and after satisfaction of liabilities to creditors of the
Trust as required by applicable law, including Section 3808 of the Delaware Statutory Trust Act,
the Administrators shall terminate the Trust by filing, at the expense of the Sponsor, a
certificate of cancellation with the Secretary of State of the State of Delaware. The provisions of
Article VIII shall survive the termination of the Trust.



     Section 9.4 Liquidation.



     (a) If an Early Dissolution Event specified in clause (a), (b) or (d) of Section 9.2 occurs or
upon the Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, including Section 3808 of the Delaware Statutory Trust
Act, to each Holder a Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid mailed not less than 15
nor more than 45 days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder’s address appearing in the Securities Register. All such notices of liquidation shall:



     (i) state the Liquidation Date;



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     (ii) state that from and after the Liquidation Date, the Trust Securities will no longer be
deemed to be Outstanding and any Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and



     (iii) provide such information with respect to the procedures by which Holders may exchange
Trust Securities Certificates for Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem appropriate.



     (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the
Trust and distribution of the Debentures to Holders, the Property Trustee, either itself acting as
exchange agent or through the appointment of a separate exchange agent, shall establish a record
date for such distribution (which shall be not more than 30 days prior to the Liquidation Date)
and, establish such procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.



     (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust
Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount
of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the exchange agent for exchange, (iii) the Sponsor shall use its best efforts to
have the Debentures listed on the Nasdaq Global Select Market or on such other national securities
exchange, interdealer quotation system or self-regulatory organization as the Preferred Securities
are then listed or traded, (iv) any Trust Securities Certificates not so surrendered for exchange
will be deemed to represent a Like Amount of Debentures bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so surrendered, no
payments of interest or principal will be made to Holders of Trust Securities Certificates with
respect to such Debentures) and (v) all rights of Holders holding Trust Securities will cease,
except the right of such Holders to receive Debentures upon surrender of Trust Securities
Certificates.



     (d) If, notwithstanding the other provisions of this Section 9.4, whether because of an order
for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Administrators not to be practical,
the Trust Property shall be liquidated, and the Trust shall be wound up in such manner as the
Property Trustee determines. In such event, Holders will be entitled to receive out of the assets
of the Trust available for distribution to Holders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, including Section 3808 of the Delaware Statutory Trust
Act, an amount equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation Distribution”).
If, upon any such winding up, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the
Common Securities will be entitled to receive Liquidation Distributions upon any such dissolution
pro rata (determined as aforesaid) with Holders of Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities as provided in Section 4.3.



     Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Trust. The Trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets substantially as an entirety to any corporation or other body,
except pursuant to this Section 9.5 or Section 9.4. At the request of the Holders of the Common
Securities, with the consent of the Administrators, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any State; provided that (i) such
successor entity either (a) expressly assumes all of the obligations of the Trust with respect to
the Preferred Securities, or (b) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the “Successor Securities”) so long as
the Successor Securities have the same priority as the Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity possessing the same powers and duties as the Property Trustee is appointed to hold
the Debentures, (iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notice of issuance, on the Nasdaq Global Select Market or on such other exchange,
interdealer quotation system or self-regulatory organization as the Preferred Securities are then
listed, if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and



38









 







privileges of the holders of the Preferred Securities (including any Successor Securities) in any
material respect, (v) such successor entity has a purpose substantially identical to that of the
Trust, (vi) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Sponsor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an “investment company” under the Investment Company Act,
(vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Trust has received an opinion of counsel experienced in such matters that such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease will not cause the Trust or
the successor entity to be classified as an association or a partnership for U.S. federal income
tax purposes; and (viii) the Sponsor or its permitted transferee owns all of the common securities
of such successor entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee Agreement. Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of all of the Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be taxable as a corporation or classified as other than a grantor trust for
United States Federal income tax purposes.



ARTICLE X

MISCELLANEOUS PROVISIONS




     Section 10.1 Limitation of Rights of Holders. Except as set forth in Section 9.2, the
death, termination, dissolution, bankruptcy or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this Declaration, nor
dissolve, terminate or annul the Trust, nor entitle the legal representatives, successors or heirs
of such Person or any Holder for such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.



     Section 10.2 Amendment.



     (a) This Declaration may be amended from time to time by the Property Trustee, the
Administrators and the Holders of all of the Common Securities, without the consent of any Holder
of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision herein
that may be inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Declaration, which shall not be inconsistent
with the other provisions of this Declaration, or (ii) to modify, eliminate or add to any
provisions of this Declaration to such extent as shall be necessary to ensure that the Trust will
not be taxable as a corporation or classified as other than a grantor trust for United States
Federal income tax purposes at all times that any Trust Securities are outstanding or to ensure
that the Trust will not be required to register as an “investment company” under the Investment
Company Act or to ensure the treatment of the Preferred Securities as Tier 1 regulatory capital
under the prevailing Federal Reserve rules and regulations, (iii) provide that certificates for the
Trust Preferred Securities may be executed by an Administrator by facsimile signature instead of
manual signature, and for the appointment of an authentication agent and related provisions, (iv)
to reduce or increase the Liquidation Amount per Trust Security and simultaneously to
correspondingly increase or decrease the number of Trust Securities issued and Outstanding solely
for the purpose of maintaining the eligibility of the Preferred Securities for quotation or listing
on any national securities exchange or other organization on which the Preferred Securities are
then quoted or listed (including, if applicable, the Nasdaq Global Select Market); or (v) require
that holders that are not U.S. persons for U.S. federal income tax purposes irrevocably appoint a
U.S. person to exercise any voting rights to ensure that the Trust will not be treated as a foreign
trust for U.S. federal income tax purposes; provided, however, that in the case of either clause
(i) or (ii), such action shall not adversely affect in any material respect the interests of any
Holder, and any such amendment of this Declaration shall become effective when notice thereof is
given to the Holders; provided further, that in the case of clause (iv) the aggregate Liquidation
Amount of the Trust Securities Outstanding upon completion of any such reduction must be the same
as the aggregate Liquidation Amount of the Trust Securities Outstanding immediately prior to such
reduction or increase; and any amendments of this Declaration shall become effective when notice
thereon is given to the Holders.



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     (b) Except as provided in Section 10.2(c), any provision of this Declaration may be amended by
the Trustees and the Holders of all of the Common Securities and with (i) the consent of Holders of
at least a Majority in Liquidation Amount of the Trust Securities, and (ii) receipt by the Trustees
of an Opinion of Counsel to the effect that such amendment or the exercise of any power granted to
the Trustees in accordance with such amendment will not cause the Trust to be taxable as a
corporation or as other than a grantor trust for United States Federal income tax purposes or
affect the Trust’s exemption from status as an “investment company” under the Investment Company
Act.



     (c) In addition to and notwithstanding any other provision in this Declaration, without the
consent of each affected Holder, this Declaration may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust Securities as of a specified date, or
(ii) restrict the right of a Holder to institute suit for the enforcement of any such payment on or
after such date; and notwithstanding any other provision herein, without the unanimous consent of
the Holders, this Section 10.2(c) may not be amended.



     (d) Notwithstanding any other provisions of this Declaration, no Trustee shall enter into or
consent to any amendment to this Declaration that would cause the Trust to fail or cease to qualify
for the exemption from status as an “investment company” under the Investment Company Act or to be
taxable as a corporation or to be classified as other than a grantor trust for United States
Federal income tax purposes.



     (e) Notwithstanding anything in this Declaration to the contrary, without the consent of the
Sponsor and the Administrators, this Declaration may not be amended in a manner that imposes any
additional obligation on the Sponsor or the Administrators.



     (f) In the event that any amendment to this Declaration is made, the Administrators or the
Property Trustee shall promptly provide to the Sponsor a copy of such amendment.



     (g) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any
amendment to this Declaration that affects its own rights, duties or immunities under this
Declaration. The Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers’ Certificate stating that any amendment to this Declaration is in compliance with this
Declaration.



     Section 10.3 Separability. In case any provision in this Declaration or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     Section 10.4 Governing Law. THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE HOLDERS, THE TRUST, THE SPONSOR AND THE TRUSTEES WITH RESPECT TO THIS DECLARATION AND THE TRUST
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.



     Section 10.5 Payments Due on Non-Business Day. If the date fixed for any payment on
any Trust Security shall be a day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on the date
fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period
after such date.



     Section 10.6 Successors. This Declaration shall be binding upon and shall inure to the
benefit of any successor to the Sponsor, the Trust and any Trustee, including any successor by
operation of law. Except in connection with a consolidation, merger or sale involving the Sponsor
that is permitted under Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Sponsor’s obligations hereunder, the Sponsor shall not assign its
obligations hereunder.



     Section 10.7 Headings. The Article and Section headings are for convenience only and
shall not affect the construction of this Declaration.



40









 





     Section 10.8 Reports, Notices and Demands. Any report, notice, demand or other
communication that by any provision of this Declaration is required or permitted to be given or
served to or upon any Holder or the Sponsor shall be sufficient for every purpose (except as
otherwise provided in Section 1.1) hereunder if in writing and mailed, first class, postage
prepaid, addressed, (a) in the case of a Holder of Preferred Securities, to such Holder as such
Holder’s name and address may appear on the Securities Register; and (b) in the case of the Holder
of the Common Securities or the Sponsor, to Southwest Bancorp, Inc., 608 South Main Street,
Stillwater, Oklahoma, 74074, Attention: Rick J. Green, or to such other address as may be,
specified in a written notice by the Holder of the Common Securities or the Sponsor, as the case
may be, to the Property Trustee. Such notice, demand or other communication to or upon a Holder
shall be deemed to have been sufficiently given or made, for all purposes, upon mailing. Such
notice, demand or other communication to or upon the Sponsor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Sponsor.



     Any notice, demand or other communication that by any provision of this Declaration is
required or permitted to be given or served to or upon the Property Trustee, the Delaware Trustee,
the Administrators or the Trust shall be given in writing addressed to such Person as follows:
(a) with respect to the Property Trustee and the Delaware Trustee, to U.S. Bank Trust National
Association, 300 East Delaware Avenue, 9th Floor, Wilmington, Delaware 19801, Attention
Corporate Trust Services; (b) with respect to the Administrators, to them at the address above for
notices to the Sponsor, marked “Attention: Administrators of Southwest Capital Trust II”; and
(c) with respect to the Trust, to its principal office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the Trust, the Property
Trustee or the Administrators shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Trust, the Property Trustee or such Administrator.



     Section 10.9 Agreement Not to Petition. Each of the Trustees and the Sponsor agree for
the benefit of the Holders that, until at least one year and one day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the filing of, a petition
against the Trust under any Bankruptcy Law or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. If the Sponsor takes action in violation of this
Section 10.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the
Sponsor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing
of such petition by the Sponsor against the Trust or the commencement of such action and raise the
defense that the Sponsor has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Trustees or the Trust may
assert. The provisions of this Section 10.9 shall survive the termination of this Declaration.



     Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.



     (a) This Declaration is subject to the provisions of the Trust Indenture Act that are required
to be part of this Declaration and shall, to the extent applicable, be governed by such provisions.



     (b) The Property Trustee shall be the only Trustee that is a trustee for the purposes of the
Trust Indenture Act.



     (c) If any provision hereof limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Declaration modifies or
excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Declaration as so modified or excluded, as the case may
be.



     (d) The application of the Trust Indenture Act to this Declaration shall not affect the nature
of the Trust Securities as equity securities representing undivided beneficial interests in the
assets of the Trust.



     Section 10.11 Acceptance of Terms of Declaration, Guarantee Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER
OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND



41









 







PROVISIONS OF THIS DECLARATION, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS DECLARATION SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND
SUCH OTHERS.



     Section 10.12 Counterparts. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.



     Section 10.13 Exchange Act Obligations. For so long as the Trust Securities shall
remain Outstanding, Sponsor shall fulfill all reporting and filing obligations under The Exchange
Act, as applicable to companies having a class of securities registered under Section 12(b) or
12(g) thereunder.



42









 





     IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Declaration of
Trust.



	 	 	 	 	 	 	 
	 	 	SOUTHWEST BANCORP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rick J. Green	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Rick J. Green

President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK TRUST NATIONAL ASSOCIATION	 	 
	 	 	     AS PROPERTY TRUSTEE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Earl W. Dennison Jr	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Earl W. Dennison Jr.

Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK TRUST NATIONAL ASSOCIATION	 	 
	 	 	     AS DELAWARE TRUSTEE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Earl W. Dennison Jr	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Earl W. Dennison Jr.

Vice President	 	 






	 	 	 	 	 
	 

	 	/s/ Rick J. Green
 

Rick J. Green, as Administrator
	 	 
	 
	 	 	 	 
	 

	 	/s/ Kerby Crowll
 

Kerby Crowell, as Administrator
	 	 
	 
	 	 	 	 
	 

	 	/s/ Laura Bright
 

Laura Bright, as Administrator
	 	 






43









 





Exhibit A

[FORM OF COMMON SECURITIES CERTIFICATE]



THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF
THE DECLARATION




			
	 	 	 
	   	 	 
	Certificate Number
	 	Number of Common Securities:






C -




Certificate Evidencing Common Securities

of

Southwest Capital Trust II

10.50% Common Securities

(liquidation amount $25.00 per Common Security)




     Southwest Capital Trust II, a statutory trust formed under the laws of the State of Delaware
(the “Trust”), hereby certifies that Southwest Bancorp, Inc. (the “Holder”) is the registered owner
of common securities of the Trust representing common undivided beneficial interests in the assets
of the Trust and designated the 10.50% Common Securities (liquidation amount $25.00 per Common
Security) (the “Common Securities”). Except in accordance with Section 5.11 of the Declaration (as
defined below), the Common Securities are not transferable and, to the fullest extent permitted by
law, any attempted transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common Securities represented
hereby are issued and shall in all respects be subject to the terms and provisions of, the Amended
and Restated Declaration of the Trust, dated as of July 2, 2008, as the same may be amended from
time to time (the “Declaration”), among Southwest Bancorp, Inc., as Sponsor, U.S. Bank Trust
National Association, as Property Trustee and Delaware Trustee, the Administrators named therein,
and the holders, from time to time, of undivided beneficial interests in the assets of the Trust
including the designation of the terms of the Common Securities as set forth therein. The Trust
will furnish a copy of the Declaration to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.



     Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.



     Terms used but not defined herein have the meanings set forth in the Declaration.



A- 1









 





     IN WITNESS WHEREOF, one of the Administrators of the Trust has executed this certificate on
behalf of the Trust this ___day of                    , 2008.



	 	 	 	 	 	 	 
	 	 	SOUTHWEST CAPITAL TRUST II	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Rick J. Green	 	 
	 

	 	Title:
	 	Administrator	 	 






A- 2









 





Exhibit B

[FORM OF PREFERRED SECURITIES CERTIFICATE]




     [IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATE, INSERT —This Preferred Securities Certificate is a Book-Entry Preferred
Securities Certificate within the meaning of the Declaration hereinafter referred to and is
registered in the name of a Depositary or a nominee of a Depositary. This Preferred Securities
Certificate is exchangeable for Preferred Securities Certificates registered in the name of a
person other than the Depositary or its nominee only in the limited circumstances described in the
Declaration and may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary, except in the limited circumstances described in the Declaration.



     Unless this Preferred Security Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (“DTC”), to Southwest Capital Trust II or its
agent for registration of transfer, exchange or payment, and any Preferred Security Certificate
issued is registered in the name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.]



			
	 	 	 
	   	 	 
	Certificate Number
	 	Number of Preferred Securities






C -




CUSIP NO. 84480C 205




Certificate Evidencing Preferred Securities

of

Southwest Capital Trust II

10.50% Preferred Securities

(liquidation amount $25 per Preferred Security)




     Southwest Capital Trust II, a statutory trust formed under the laws of the State of Delaware
(the “Trust”), hereby certifies that                      (the “Holder”) is the registered owner of
Preferred Securities of the Trust representing an undivided preferred beneficial interest in the
assets of the Trust and designated the Southwest Capital Trust II 10.50% Preferred Securities
(liquidation amount $25.00 per Preferred Security) (the “Preferred Securities”). The Preferred
Securities are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in proper form for
transfer as provided in Section 5.5 of the Declaration (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of the Trust, dated as of July 2, 2008, as the same may be amended from time
to time (the “Declaration”), among Southwest Bancorp, Inc., as Sponsor, U.S. Bank Trust National
Association, as Property Trustee and Delaware Trustee, the Administrators named therein, and the
holders, from time to time of undivided beneficial interests in the assets of the Trust including
the designation of the terms of the Preferred Securities as set forth therein. The Sponsor has the
right under the Indenture to defer the payment of interest on the Debentures by extending the
interest payment period for up to 20 quarterly periods at any time or from time to time, subject to
certain limitations. The Holder is entitled to the benefits of the Guarantee Agreement entered into
by Southwest Bancorp, Inc., an Oklahoma corporation, and U.S. Bank National Association, as
guarantee trustee, dated as of July 2, 2008, as the same may be amended from time to time (the
“Guarantee Agreement”), to the extent provided therein. The Trust will furnish a copy of the
Declaration and the Guarantee Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.



     Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.



B- 1









 





     IN WITNESS WHEREOF, one of the Administrators of the Trust has executed this certificate on
behalf of the Trust this                     day of                     , 2008.



	 	 	 	 	 	 	 
	 	 	SOUTHWEST CAPITAL TRUST II	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	Administrator	 	 






     This is one of the Preferred Securities referred to in the within-mentioned Declaration.



	 	 	 	 	 	 	 
	 	 	U.S. BANK TRUST NATIONAL ASSOCIATION	 	 
	 	 	     AS PROPERTY TRUSTEE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






B- 2









 






ASSIGNMENT




     FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security to:                     



 





(Insert assignee’s social security or tax identification number):




(Insert address and zip code of assignee):




	 	 	 
	 
	 	 
	and
	 	 
	irrevocably
	 	 
	appoints
	 	 
	 

	 	 




agent to transfer this Preferred Securities Certificate on the books of the Trust. The agent may
substitute another to act for him or her.




Date:                                        




	 	 	 
	 
	 	 
	Signature:
	 	 
	 

	 	 




(Sign exactly as your name appears on the other side of this Preferred Securities Certificate)



The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.





B- 3